author: SUGG, Justice, BOWLING, Justice,

text:
    Gerald R. McCAY et al. v. Mrs. Patsy JONES.
    No. 49779.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Rehearing Denied Feb. 22, 1978.

      Jacobs, Griffith & Povall, Benjamin E. Griffith, L. Ellis Griffith, Cleveland, for appellant.
    Sullivan, Smith, Hunt & Vickery, F. Ewin Henson, III, Clarksdale, for appellees.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   SUGG, Justice,

for the Court:

Plaintiff, Mrs. Patsy Jones, recovered a judgment in the Circuit Court of Coahoma County against defendants, Gerald R. McCay and United Parcel Service, Inc., in the amount of $15,000 for injuries received in a collision between the vehicle which plaintiff was driving and the vehicle operated by McCay for United Parcel Service, Inc.

The two issues decided in this case do not involve the defendants’ liability, but only affect the damages awarded by the jury. We affirm as to liability and reverse and remand for a trial on the issue of damages only.

I.

The first assignment of error which we consider is:

The Court erred in sustaining Appel-lee’s motion in limine requiring Appellants not to bring two doctors and a medical records director into the courtroom during the trial in the presence of the jury.

Before trial, plaintiff filed a motion in limine in the following language:

Now comes plaintiff and moves the court prior to the trial of this cause that the court order and direct the defendant during the trial not to call as witnesses Dr. Edwin Hemness, Dr. Joe Campbell, and Mrs. Gwen Daves, Medical Records Librarian of the Northwest Mississippi Regional Medical Center.
Plaintiff would state unto the court that the testimony of such individuals is privileged under section 13-1-21 of the Mississippi Code of 1972, Annotated, and that plaintiff does not desire to waive such privilege. Plaintiff would further state unto the court that allowing the defendant to call such witnesses in order to force the plaintiff to invoke such privilege in the presence of the jury would be highly prejudicial.

The motion in limine was not considered by the court until plaintiff was cross examined by counsel for defendants and asked if she was willing for the two doctors named in the motion to testify about her condition. Plaintiff’s counsel objected and, following arguments in chambers, the court sustained the motion.

After the collision in which plaintiff was injured, she was treated by four physicians, but called only one to testify in her behalf. When the court sustained the motion in limine, it prevented defendants from calling as witnesses two of the doctors who had treated plaintiff following the collision. This action of the court goes far beyond preserving the privileged communication between a physician and his patient and prevented defendants from calling two physicians who had treated her as witnesses for any purpose whatever. While section 13-1-21 Mississippi Code Annotated (Supp. 1976) makes all communications between a patient and physician from whom the patient has sought professional advice privileged, it does not make the physician incompetent as a witness, but only prevents the physician from testifying as to any privileged communication. In Donaldson v. Life and Casualty Ins. of Tenn., 239 Miss. 635, 124 So.2d 701 (1960) we held that the statute does not prohibit a physician from answering a hypothetical question which does not contain any information which the physician obtained from his patient. We also held in Dabbs v. Richardson, 137 Miss. 789, 102 So. 769 (1925) that although a physician could not testify to the facts and information received by him in his professional capacity, he was competent to testify as to his knowledge concerning mental conditions derived from social or business relationships with the patient. We also held in G., M. & N. R. Co. v. Willis, 171 Miss. 732, 157 So. 899 (suggestion of error 158 So. 551) (1935) that the statute making communication between a physician and his patient privileged must be limited to its language and clear purpose, and should not be extended by construction. In Powell v. J. J. Newman Lumber Co., 174 Miss. 685, 165 So. 299 (1936) we stated:

It is true that in some cases we have held that a physician could testify as an expert to matters that he did not learn in the relation of physician and patient. Estes v. McGehee, 133 Miss. 174, 97 So. 530; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Watkins v. Watkins, 142 Miss. 210,106 So. 753. But in the case of Gulf M. & N. R. Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551, 552, the matter was discussed, and we supposed was clearly settled in the minds of the bench and bar that the testimony of physicians could not be admitted even in the absence of the jury, but if the matter was not privileged testimony it could be developed by examination of the witness in the absence of the jury. In that case a dentist was offered as a witness for the defendant as to the extent of injuries suffered which knocked some of his teeth loose. We there held that a dentist was not a physician, and that the statute would not be extended to include persons not within its terms, and further that there was no sufficient statement of facts expected to be developed by this witness if permitted to testify. As shown by the record, that case called for the testimony of a dentist. To a suggestion of error filed therein, Judge Griffith said as follows: ‘To the rule last stated there are a few exceptions, and one of these is when a witness is tendered and it is sought to examine him upon matters which the law forbids him to disclose. For instance, the law forbids that an attorney shall disclose the knowledge which he has acquired from or for his client in and about his client’s business. When an attorney is placed on the witness stand and, without his client’s consent, it is attempted to interrogate him about his client’s business, the witness is not only privileged to refuse to answer, it is his duty to refuse. And the offerer cannot state into the record what he expects to prove by that witness, for the law denies the right to prove by that witness anything of the matters sought to be elicited. Likewise as to a physician, upon which subject this court said in United States F. & G. Co. v. Hood, 124 Miss. 548, 571, 87 So. 115, 15 A.L.R. 605: “The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public may hear the statement of the physician in such case, though it be excluded from the jury.” In these cases, if the knowledge sought to be placed in the record was acquired during the existence of the relationship which makes the information privileged, then the inquiry is not permitted to proceed further than to develop the actual existence of the privileged relationship.’
It will be seen that we have distinctly held that it is not permissible to examine a physician over the objection of a patient as to matters communicated to the physician, or learned by him as the result of an examination, or communications between a physician and patient. The object of the statute is not merely to protect parties from the result of lawsuits which the evidence might affect, but the object of the statute is to permit people freely to consult physicians about their physical or mental condition, and about any treatment for any ailment they may have or think they have. (174 Miss. at 695, 696, 165 So. at 302).

In Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So.2d 217 (1954) defendant called one of the physicians who had examined plaintiff. The plaintiff objected and claimed the physician-patient privilege. Counsel for defendant then stated to the court that he wanted to develop the record up to the point where objection by the plaintiff would be interposed. In the absence of the jury defendant’s attorney offered to prove by the physician that he examined plaintiff on the day following the accident and continued to treat her until she had recovered. Counsel also stated that he wanted to show that the physician was available as a witness, had his records with him, and was prepared to testify as to his examinations and findings. The trial judge sustained the objection and defendant argued on appeal that he desired to use the physician as an expert witness and have him answer hypothetical questions, but this Court noted that, “No such statement was made to the trial court.” Under this factual situation we held:

Under Section 1697, Code of 1942, all communications between physician and patient are privileged and the physician shall not be required to disclose the same in any legal proceeding except at the instance of the patient. Appellee was entitled to object to Dr. Boone’s disclosing what he may have learned from his examination of her. Appellant obtained an instruction which told the jury that Mrs. Myrick could waive the statute and permit the doctor to testify either in her own behalf or as an adverse witness, and another instruction which told the jury that the defendants could not compel Dr. Boone to testify over plaintiff’s objection and that the jury is warranted in inferring that his testimony would have been unfavorable to plaintiff if he had been permitted to testify. By these instructions, we think that appellant obtained all to which it was entitled in connection with the proffered testimony of the doctor. (220 Miss. at 436, 71 So.2d at 219).

The case at bar is distinguishable from Myrick because, in Myrick, the trial court was not advised that defendants wanted to question the physician about matters which were not privileged, while in this case the court was advised by the defendants that they desired to question the physicians about matters which were not privileged.

We fail to find any cases decided by us on the precise question presented here; however, the Court of Appeals of Ohio addressed this issue in Vincenzo v. Newhart, 7 Ohio App.2d 97, 219 N.E.2d 212 (1966). The plaintiff, Newhart, received treatment for the injuries sued for from his personal physician. At the trial plaintiff called two other doctors but did not call his attending physician. Defendant subpoenaed the attending physician whereupon plaintiff moved that the trial court deny the defendant the right to call his attending physician because of the privilege afforded under the Ohio statutes. The trial judge sustained plaintiff’s objection and instructed defense counsel to refrain from calling the physician and stated: “To rule otherwise would seem to make a farce out of the privileged communication statute.” On appeal the Ohio Appellate Court reversed and stated:

The question with which we are confronted in this case is whether the privileges afforded by Section 2317.02, Revised Code, are so broad as to preclude the calling of an attending physician as a witness where the privilege has not been waived by the patient. (7 Ohio App.2d at 99, 219 N.E.2d at 214).
Section 2317.02, Revised Code, provides:
‘The following persons shall not testify in certain respects:
‘(A) * * * a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient, but the * * * physician may testify by express consent of the * * * patient * * * and if the * * * patient voluntarily testifies, the * * * physician may be compelled to testify on the same subject;
‘ * * V (Emphasis added.)
At the outset, it is to be noted that the language of the statute is not couched in such terms as to make an attending physician an incompetent witness, but merely says that he shall not testify in certain respects, namely as to communications and advice.
Diligent search has uncovered no fact situation exactly analogous to the one at bar. (7 Ohio App.2d at 99,100, 219 N.E.2d at 214).
It appears to us that the danger inherent in the defendant’s contention that the doctor cannot even take the witness stand where the privilege is claimed is that for all practical purposes no attending physician would be a proper defense witness in any trial where the privilege is asserted. This would seem to be a considerable broadening of the legislative intent, which is that the attending physician be precluded only from testifying in ‘certain respects.’
On the other hand, plaintiff asserts, and the trial court held, that any other conclusion would put the plaintiff in the position (having chosen not to call the attending physician in his case in chief) of appearing to hide some evidence prejudicial to his case by being forced to assert his privilege only after the physician has been called as a witness. Though it be conceded that this uncomfortable dilemma might well arise, yet to allow the plaintiff to so control the defendant’s case would effectively deny to the defendant competent testimony of plaintiff’s attending physician concerning matters outside the scope of the privilege. This is especially so in the instant case, where but one medical witness was called by the defendant. (7 Ohio App.2d at 101, 219 N.E.2d at 215).
One can conceive of many competent questions which could be propounded to an attending physician, which would fall outside the limitation relative to communication and advice covered by the statute.
Such questions directed to a witness and the admissibility of the answers thereto could only be ruled upon in the ordinary course of a trial, once the witness had taken the oath and been seated.
Broad discretion is vested in the trial court to guard against unfair innuendoes which might arise as a result of trial strategy. And if, as is sometimes the case, such events do occur in the course of a trial, the jury can be firmly instructed to disregard them.
But to preclude an otherwise competent witness from even taking the stand because of the fear of such eventuality is clearly an abuse of discretion and gives far more latitude to the statute than was the legislative intent. (7 Ohio App.2d at 102, 219 N.E.2d at 215, 216).

In our case the defendants obtained an instruction that plaintiff had the right to claim as privileged the communication between her and the two physicians sought to be called as witnesses, but when she claimed the privilege, the jury could infer that, if the physicians were permitted to testify, their testimony would have been adverse to the interest of the plaintiff. This instruction was first authorized by our decision in Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577 (1940).

We hold that it was error to sustain the motion in limine because the privileged communication statute between physicians and patients does not make a physician incompetent as a witness for all purposes, but only prevents the physician from testifying as to any privileged communication. There are competent questions, which may be asked of an attending physician, which fall outside the prohibition of the statute. When the court denied defendants the right to subpoena and introduce otherwise competent witnesses, this extended the privileged communication statute more than the legislature intended.

II.

The next assignment of error which we consider states:

The Court erred in permitting Appellee to establish prima facie the reasonableness and necessity of certain medical expenses, while sustaining Appellee’s motion in limine precluding testimony of two doctors and a medical records director to rebut such presumption of reasonableness and necessity.

Under this assignment of error, defendants contend that, permitting plaintiff to establish the necessity of reasonableness of her medical expenses by introducing the bills from various doctors and hospitals as authorized by statute, thereby making the bills prima facie evidence that the treatment covered by the bills was necessary and the charges therefor reasonable, coupled with sustaining plaintiff’s motion in limine, deprived defendants of due process of law. They further contend that the action of the court effectively precluded them from rebutting the statutory presumption that the medical expenses covered by the bills were necessary and reasonable, thereby raising prima facie evidence to an irrebuttable presumption.

Before the enactment of section 41-9-119, the common law was that medical expenses, where claimed as an element of damage, required proof connecting the bills for such medical expenses with the injury or disease sued on, together with proof that the charges for the medical expenses claimed were reasonable. Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 252, 168 So.2d 289 (1964). The purpose of the statute was to simplify the procedure for proving medical expenses where claimed as an element of damages. It permits a party to introduce bills for medical expenses which have been paid or incurred, upon the testimony of the party that the bills were incurred or paid because of the illness, disease or injury sued on and makes the bills prima facie evidence that the treatment was necessary and the charges therefor were reasonable.

However, the statute does not cut off the right of a defendant to controvert the presumption established by the introduction of such bills. Defendants argue that they were prevented from calling witnesses to rebut the presumption that the treatment covered by the bills was necessary for treatment of the injury complained of and the charges were reasonable.

Plaintiff introduced medical bills summarized as follows:

Dr. Edwin Hemness $ 127.00 (8-4-74 to 10-8-74)
Northwest Mississippi Regional Medical Center 52.50 (7-17-74)
Drs. Ellis and Clark (radiology) 14.00 (7-17-74)
Northwest Mississippi Regional Medical Center Pharmacy 4.73 (7-17-74)
Dr. Orlando J. Andy 546.00 (3-24-75 to 10-13-75)
University of Mississippi Medical Center 388.10 (7-21-75 to 7-24-75)
University of Mississippi Medical Center (radiology) 28.00 (3-24-75)
Stone’s Drug Store, Marks, Mississippi 69.22 (3-28-75 to 1-7-76)
Dr. Joe Campbell 92.00 (9-24-75 to 10-3-75)
Drs. Ellis and Clark 53.00 (9-26-75 to 10-1-75)
Northwest Mississippi Regional Medical Center 658.70 (9-24-75 to 10-1-75)
TOTAL $2,125.25

We have enclosed in parenthesis the dates covered by the bills on the above schedule.

The medical bills introduced by plaintiff totaled $2,125.25. Defendants sought to call two physicians whose bills, together with the last hospital confinement, totaled $877.70. Defendant was injured in a collision which occurred on July 16, 1974 and it is observed that Dr. Hemness’ bill covers a period from August 4, 1974 to October 8, 1974, Dr. Campbell’s bill covers a period from September 24,1975 to October 3,1975 and the last hospital confinement covered a period from September 24, 1975 to October 1, 1975.

When the medical bills were introduced by the plaintiff, defendants pointed out to the court that a large amount of the medical expenses were represented by confinement of the defendant in the Northwest Mississippi Regional Medical Center and the services of the two physicians whom they sought to call as witnesses. Defendants stated that they desired to examine the physicians on two matters, (1) whether the treatment covered by the bills was necessary or related to the injury of plaintiff, or (2) whether the charges were reasonable.

Defendants argue that they should not have been prevented from calling the physicians to examine them on these matters because the physicians had examined plaintiff, prescribed treatment for her, and would be in the best position to know whether the treatment covered by the bills was for the injury sustained by plaintiff in the collision.

We hold that the physicians were not incompetent to testify on the question of the reasonableness of the charges for medical expenses, nor were they incompetent to testify whether the treatment of plaintiff covered by their bills, or the bill for hospitalization, where they were the attending physicians, was related to and necessary for treatment of the injury which was the subject matter of the lawsuit. The privileged communication statute does not prohibit testimony of the doctors on these two matters and the court erred when it refused to permit them to testify.

Defendants may not ask the physicians the nature of the disease or injury covered by their treatment, but the inquiry must be limited to whether the treatment was related to the injury complained of by the plaintiff. Killings v. Metropolitan Life Insurance Co., 187 Miss. 265, 192 So. 577 (1940) dealt with the physician-patient privileged communication statute, section 13-1-21, and contains an exhaustive discussion of the statute. In Killings we said:

Is it to be supposed that any honest majority of our legislature ever contemplated that this statute could be put to any such a use as that a party claiming to be suffering with a particular malady or injury could, for the purposes of a lawsuit, bring physician after physician to observe and examine him, and when from the number he had found one, who by his incompetency or want of moral sensibilities, or for other reasons, was willing to grossly overstate or misstate the malady or injury, he could use only that one, and thereby render the opponent party utterly helpless, even to the extent of forbidding the comment or inference which the questioned instruction here presents? We decline any such a supposition until the legislature shall enact a statute so explicit in its terms as to expressly exclude that declination. How far may a statute of this kind go and not come into conflict with the constitutional requirements of due process'! And the unjust uses to which the statute has been attempted to be put, with the claim at the same time that the opposite party was rendered utterly helpless, is aptly illustrated by the two cases, Beard v. Williams [172 Miss. 880, 161 So. 750] and Robinson v. Haydel [177 Miss. 233, 171 So. 7], supra. (187 Miss. at 274, 192 So. at 579). (Emphasis supplied).

We think the question posed in Killings is pertinent to the question raised by this assignment of error, and hold that precluding the defendants from examining the physicians within the narrow scope permitted above amounts to a violation of due process.

For the same reasons, the Medical Records Director of Northwest Mississippi Regional Medical Center was 'not an incompetent witness simply because the hospital records are confidential. She could testify, without stating what the records show with reference to the nature of the disease or injury for which plaintiff was treated, whether the hospital confinement was for the injuries resulting from the collision, if her knowledge was from an independent source.

AFFIRMED AS TO LIABILITY AND REVERSED AND REMANDED FOR TRIAL ON ISSUE OF DAMAGES ONLY.

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

BOWLING and LEE, JJ., dissent.

BOWLING, Justice,

dissenting:

I respectfully dissent.

I.

Conceding that there would be occasions in trials involving personal injuries where the examining or treating physicians could be placed on the stand by the patient’s opposition and asked questions, this is not one of those cases. The majority opinion sustains two assignments of error in regard to the patient-physician relation. We shall discuss these in reverse order as that is the way they appear in the record and the order in which they were reached during the course of the trial. This is material on the issues raised. I have no quarrel with the authorities discussed in the majority opinion. Unlike the situation here, the facts in the cited authorities fit the legal principles involved. The facts in the case before us now do not apply to those principles.

The majority opinion held that the court erred in permitting appellee to establish prima facie the reasonableness and necessity of certain medical expenses, while sustaining appellee’s motion in limine precluding testimony of two doctors and a medical records librarian to rebut such presumption of reasonableness and necessity.

In the first place, the privilege communication statute had not been invoked by ap-pellee or her attorneys, and a hearing on the motion had not been had at the time the medical bills were introduced and objection thereto made by attorneys for appellants.

On direct examination of appellee by her attorney, she was about to introduce medical, hospital and drug bills pursuant to Mississippi Code Annotated section 41-9-119 (1972). The attorney for appellants objected to the introduction of these bills and asked for a hearing in chambers out of the presence of the jury. This was done. The objection dictated into the record was:

“We submit that the best evidence in this case for the proof of these medical expenses and whether or not they are reasonable and whether they were necessary for the treatment of the alleged back injury will be these doctors and the proof from the hospital. And that by a back door, secondary evidence is attempted at this point; that is not the best evidence, and should not be received at this time. He is attempting to do by indirection what he will not permit us to do directly. We think this is going to poison the minds of the jury that plaintiff has incurred large medical expenses in connection with this neck injury and the only one who is going to say that is the plaintiff herself. We are going to be prohibited from offering the testimony of several doctors as to whether or not these medical expenses were necessary in connection with this injury. We object to this proof at this time.”

As hereinbefore stated, the matter of whether or not the privilege would be waived under Code section 13-1-21 had not been brought to the attention of the court and the motion merely had been filed. There had not been a hearing thereon and no occasion had arisen to invoke the privilege or waive it. The attorney for appellants merely stated:

We are going to be prohibited from offering the testimony of the several doctors as to whether or not these medical expenses were necessary in connection with this injury.

There had been no offer of proof by appellants or any indication whatever that they would offer evidence from the treating doctors or anyone else that the bills about to be introduced were unreasonable or unnecessary. That point had not been reached. The majority opinion, therefore, is erroneous when it states that “The court permitted appellee to introduce the medical, hospital and drug bills while sustaining appel-lee’s motion in limine.” At the time the bills were presented, their introduction clearly was authorized under the statute.

In effect, the majority opinion permits the litigant when bills are offered under the statute to object thereto merely by saying that we might later offer proof that they are unreasonable or unnecessary. This completely destroys the continuity of a trial and invalidates the statute on the introduction of medical bills.

The first assignment of error discussed in the majority opinion is that “the court erred in sustaining appellee’s motion in limine requiring Appellants not to bring two doctors and a medical records librarian into the courtroom during the trial in the presence of the jury.”

At the outset, it is noted in this assignment that there was no prohibition against appellants from later offering the witnesses and offering to examine them preliminarily in the court’s chambers to see if their testimony would come within an exception to the privileged communication statute. As will be seen later, appellants never made this request or offer.

On cross-examination of appellee, appellants’ attorney was inquiring of appellee about her physical condition and treatment of her injuries. Appellee was asked:

Q. Now, Mrs. Jones, if anyone knows anything about your condition that can tell this jury really what your injury is and the extent of it, it would be these doctors that we have gone over here, isn’t it?
A. Yes.
Q. They know more about your condition than you do, don’t they?
A. Well not really, I mean I know as much as they do about my condition, or more, because they don’t know how much pain and suffering I went through.
Q. They have taken x-rays and they are experts in their field, aren’t they?
A. That's right.
Q. Now are you willing that these men testify to this jury about your condition?

The attorney for appellee then objected and the court stated that he would hear the objection in chambers. This was done. It is clear from the record that the matter of bringing the case to the point where a decision had to be made pertaining to the privileged communication statute was deliberately brought about by the cross-examination of appellee. It is noted that the manner in which this was brought about had nothing whatever to do with the reasonableness or necessity of the bills. Attorney for appellants based this question solely on the treatment of appellee by the physicians. This required the attorneys for ap-pellee to then make a decision pertaining to whether or not to waive the privilege. They chose not to do so and asked for a hearing on the motion prohibiting the doctors and hospital records librarian from being called to the courtroom and placed on the stand in front of the jury. At no time during these proceedings did attorneys for appellants give any indication whatever that they intended to call the doctors and the medical records librarian for the purpose of proving that the bills were unnecessary or unreasonable, (Emphasis supplied). Appellants’ attorney stated:

Your Honor, we object to counsel advising the witness on cross examination. Now, this witness is on cross examination, and has testified in substance as we understood her testimony to be that she had muscle spasms and headaches and so forth, all of which originated from this accident; she’s attributing these things to the accident, and attributing them as the cause of her inability to pursue her work with Avon and other work that she would like to have. Now, we come along on cross examination and ask her, “These doctors have all seen you in connection with this disability that you have described; they’ve made x-rays and you have been in the hospital.” Now, our question essentially is aren’t they in a better position to know what your problem is than you are attributing it to this accident, and saying that it makes her physically unable to work. We think as a cross examination question that’s a valid question, and also further reducing the weight of what she says is the cause of her disability and extent of it, that they— that there are other persons that will know better what her disability is and the extent of it than she is, preparing ourselves for putting other witnesses on. We think all those are — aside from— we’re not offering these other doctors at this point, Your Honor, as medical witnesses; we are impeaching her diagnosis of herself and her attributing this disability and pain to this accident.

The attorney further stated:

We would like to bring those witnesses to the courtroom and qualify them, and then ask them if they have treated and examined Mrs. Jones, and have the court overrule — have the court sustain his objection at that time.
All right, sir, may I ask in the presence of plaintiff’s counsel and in the presence of the court in chambers if we will be permitted to follow through and place on the witness stand Dr. Joe Campbell and Dr. Edwin Hemness, and Mrs. Gwin Davis, as Medical Records Librarian of the Northwest Mississippi Regional Medical Center with the medical records of that Center pertaining to all treatment of Mrs. Patsy Jones subsequent to July 16, 1974, offering these in evidence during the trial of this afternoon. Will the Court permit us to offer those witnesses and offer those records into evidence before the Jury?

In answer, the court stated: “You have a right to state to the jury that you are offering these things and that the privilege was invoked.”

It is again noted that at no time did the attorneys for appellants make any offer or request to place anyone on the stand, much less the doctors and the medical records librarian, for the purpose of proving that these bills were either unnecessary or unreasonable.

The court concluded during this conference, brought on by the interrogation by appellants’ attorneys of appellee that appel-lee properly had invoked the privilege communication statute and the doctors and medical records librarian could not be called for the purposes stated above by appellants' attorneys. (Emphasis ours)

The trial proceeded and never was any mention made of calling the doctors and medical records librarian for the purpose of proving the bills unnecessary or unreasonable. At no time during appellants’ presentation of their case was it ever stated to the court that they desired to call anyone, plaintiff’s doctors or others, to rebut the presumption of the necessity and reasonableness of the bills introduced prior to the time the privileged communication statute was invoked at the instigation of appellants’ attorney.

Appellants requested and were given the harsh instruction that they had offered the doctors and that appellee had invoked the privilege, and “you may reasonably infer therefrom, that if the doctor had testified his testimony would have been adverse to the interest of the plaintiff.”

This instruction went to diagnosis, treatment, bills and every relationship between appellee and the doctors in question. Under this instruction, appellants’ attorney had the clear right, and probably did, argue that the bills were unreasonable and unnecessary because the court had told the jury in the instruction that the doctors’ testimony would be “adverse” to the interest of the plaintiff.

It is, therefore, inescapable that the principle set out in the majority opinion, that is, that under certain circumstances, the examining or treating physician may be placed on the stand to testify about matters not involved in the privileged communication statute, is just not pertinent to this case.

II.

I should go further and discuss the proposition that assuming the appellants had properly attempted to present the two doctors in question and the medical records librarian for the sole purpose of proving the bills either unnecessary or unreasonable, their testimony on these points would inescapably be in violation of the privileged communication statute prohibiting any testimony by the physician or surgeon that in any way pertains to communications made to them by their patients. Assuming that these witnesses properly were identified and called, and on the stand they were asked by appellants’ attorney whether their bill was necessary in regard to treatment of plaintiff for injuries, about which the case is being tried, and assuming that this doctor did not think that part or all of his treatment involved those injuries, there would be no way for him even to say the word “No” without taking into consideration pri- or communications received by him from his patient. Any question and answer on the subject could not be separated from the communications between patient and physician.

Going to the next proposition, that his bill was unreasonable, certainly the doctor could not impeach his own bill. Further, suppose that the court erroneously permitted him to impeach his bill, he could not do so without taking into consideration communications received by him from his patient. We have to bear in mind that the patient’s adversary has placed this doctor on the stand as a witness. He cannot cross-examine his witness and try to bring out parts of the bill which he claims unreasonable if the doctor states they were reasonable. With deference, there is no way to question the doctor and medical records librarian in this case without any answer being at least partly based on communications from the patient.

Therefore, it is clear to this writer that the exception to the privileged communication statute, erroneously advanced by appellants in this case, cannot be invoked without violating the terms of the privileged communication statute. Other exceptions, such as hypothetical questions, might be, but we are not involved with them here. The majority opinion makes a positive ruling that any examining or treating doctor may be called over objection of the patient and examined regarding the necessity or reasonableness of his bill. The attorney opposite the patient is given legal license to go on a “fishing expedition.” In effect, this holding legislates the privileged communication statute out of the Code. I can reach no other conclusion. I am not prepared to legislate by judicial fiat. I would prefer that che proper body of elected officials do this.

In my humble opinion, the cause should be affirmed.

LEE, J., joins in this dissent.

      . All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding except at the instance of the pátient .

      . Section 41-9-119 Mississippi Code Annotated (1972) [Ch. 375, § 10 Gen.Laws (1971)] provides:
      Proof that medical, hospital, and doctor bills were paid or incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.


source: Caselaw Access Project

license: Public Domain

text:
    James BURT v. REBEL LIQUID FEED, INC., et al.
    No. 49973.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Mel Davis, Oxford, for appellant.
    Freeland & Gafford, A. L. Sage, III, Oxford, for appellee.
   Appeal from Circuit Court, Lafayette County; W. W. Brown, Judge.

Before PATTERSON, C. J., SMITH, P. J., and BROOM, J.

AFFIRMED.


text:
    Charles R. BRADY, Jr., Chairman Mississippi State Tax Commission v. HOLCOMB ASPHALT COMPANY, INC.
    No. 49972.
    Supreme Court of Mississippi.
    Feb. 8, 1978.

      William N. Lovelady, Jr., James H. Haddock, Joe D. Gallaspy, Jackson, for appellant.
    White & Morse, Stanford E. Morse, Jr., Gulfport, for appellee.
    Before PATTERSON, C. J., BROOM and WALKER, JJ., and BARNETT, Commissioner.
   JAMES ARDEN BARNETT, Commissioner for the Court:

By order of the Mississippi State Tax Commission, the appellee, Holcomb Asphalt Company, Inc. (Holcomb herein), was assessed taxes in the amount of $36,473.37 under the authority granted in Mississippi Code Annotated, Section 27-65-21 (1972), which levies a two and one-half percent contractor’s tax on compensation received for contracting or, among other things, engaging in the activity of paving or repairing streets and highways within the State of Mississippi. The Commission’s order was appealed to the Chancery Court of the First Judicial District of Harrison County. The chancellor thereupon, finding that the transaction between Holcomb and the City of Gulfport and Harrison County amounted to a sale rather than a contracting activity, determined that the tax was wrongfully imposed.

The City of Gulfport and Harrison County each invited annual bids on a number of things which were purchased from time to time throughout the year and Holcomb entered bids for asphalt with one price being for asphalt picked up at the plant by the City of Gulfport, and the other price being an additional amount for the asphalt “in place” or in other words where Holcomb actually delivered the asphalt to the site and applied it to the street. In 1971 the bid gave a single price for “in place” asphalt, but in 1972 the bids specified a price f. o. b. the company plant and also quoted an additional price of $3.10 for the asphalt put “in place.” This was an attempt to make the transactions either a straight sale at the asphalt plant or a straight sale of asphalt plus the sale of services in addition to the purchase of the asphalt for the placing of the asphalt in the appropriate holes in the street.

Section 27-65-21, Mississippi Code Annotated, (1972) provides in its pertinent parts:

(1) Upon every person engaging or continuing in this state in the business of contracting or performing a contract or engaging in any of the activities or similar activities listed below for a price, commission, fee or wage, there is hereby levied, assessed, and shall be collected a tax equal to two and one-half percent of the total contract price or compensation received from construction ... repairing ... or adding to any building, highway, street, sidewalk . any other improvement or structure or any part thereof when the compensation received exceeds ten thousand dollars. The tax imposed in this section is levied upon the prime contractor and shall be paid by him.

Because the bid of the appellee was an annual bid, no quantities were specified or times specified for deliveries thereof. Ap-pellee’s executive vice-president testified,

“The City Commissioner would call me in and say that he had a certain street where they were having real problems, you know, tearing to pieces, and he would ask me to get with his road superintendent and go over the street and pave it or resurface it as a rule. Most of the streets, you know, are just old asphalt and they were re-surfaced.”

The Gulfport Commissioner of Public Works testified that his duties included seeing to repairs and maintenance of streets in the City of Gulfport. He testified,

“My street superintendent and I would go out and we would check over the worst streets and in fact, we kept a list of the worst streets, and we would decide what we would do with this money [maintenance money] and my superintendent stayed in touch with asphalt companies, and they would take them out— for instance, maybe we would have four or five intersections that needed patching and repaired [sic] and we would take them out and show them this intersection, and they would go in and repair it, and then we would take them to the next intersection. Sometime, we would have a rather long run, maybe a couple thousand feet of road and then maybe the next time maybe we would get a short, short area. What we were trying to do was take the money that was available and resurface the roads as best we could.”

He also testified that for a long time the City of Gulfport bought the asphalt at the plant, used its own trucks and asphalt spreaders, and kept trained men to do the work, but “ . . .we had trouble keeping our equipment going and then we had trouble keeping qualified, skilled men that could do the work.” The City of Gulfport and Harrison County developed the system used of accepting annual bids for the asphalt “in place” because it was easier and no doubt cheaper than engaging in individual contracts for repair work. This would have entailed hiring architects, developing specifications, advertising for individual contract work.

However, Section 27-65-21 must be reckoned with. The section states that if a person engages in the activity of repairing streets and if the compensation for doing so is more than ten thousand dollars, then the tax imposed upon said prime contractor in the amount of two and one-half percent must be paid. The bids were carefully drawn and accepted so as to show a purchase of asphalt mix and a purchase of services in putting the asphalt in place or delivering it; nevertheless, it is impossible to get around the fact that however artfully described in the bids, the bottom line amounts to repair of streets as described in Section 27-65-21. What was required of Holcomb was not simply to deliver the asphalt mix and dump it out in a hole or on a street. Holcomb was preparing the mix, putting it in trucks and delivering it to the site indicated by the city or county, sweeping or cleaning the hole or the surface of the damaged street, coating it with a tacking preparation, applying the asphalt mix to the proper depth, spreading and compacting it, and preparing it for weather and traffic. The witnesses testified that it took skilled and trained men to apply the asphalt and repair the streets.

If the activity described was no more than a sale and did not amount to repairing the streets, then of course the tax would, under other sections, be five percent, but also under other sections would be exempt as being a sale to a governmental entity. However, it seems clear that notwithstanding the fact that the transaction was labeled a simple sale of goods and services, it must be laid alongside the provisions of Section 27-65-21 where it becomes apparent that the goods and services described amounted to the activity of repairing streets and must be taxed thereunder. The decision of the court below was manifestly in error and must be reversed. It is necessary that the cause be returned to the court below for a determination of how much, if any, tax is due on compensation received by the appellee in excess of the ten thousand dollar exemption.

REVERSED AND REMANDED.

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

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


author: LEE, Justice,

text:
    Etta CLAIBORNE v. Cecil GREER
    No. 49924.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Zuccaro, Riley, Pintard & Brown, J. Walter Brown, Jr., Natchez, for appellant.
    Wise, Carter, Child, Steen & Caraway, Edward J. Currie, Jr., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Etta Claiborne sued Cecil Greer in the Circuit Court of Claiborne County for personal injuries sustained in an automobile collision and, at the conclusion of all the evidence for both parties, the trial judge directed a verdict in favor of defendant. The sole question on this appeal is whether or not the court erred in granting the directed verdict.

The parties agree that the rule applicable to motions for directed verdicts at the conclusion of all the testimony and to requests for peremptory instructions is stated in Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss.1975), wherein the Court, in quoting from General Tire and Rubber Company v. Darnell, 221 So.2d 104 (Miss.1969), said:

“ ‘The established rule is that when the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff, the jury verdict should not be disturbed. 221 So.2d at 105.’
The quotation above, we believe, expresses the better rule for a peremptory instruction or a judgment n.o.v. since it permits the court to examine the evidence of both parties that is not in conflict, as here, in order to reach a legal conclusion; or stated differently, the jury resolves conflicts of fact — the court resolves issues of law arising from noncon-flicting facts.” 319 So.2d at 657.

The only witnesses on the issue of liability were appellant, appellee, Wilber Archer, and Officer Rip McKwene. The evidence most favorable to appellant indicated that on February 20, 1976, she was driving her automobile in a northerly direction on Old Highway 61 and approached its intersection with Highway 547 which ran in an easterly-westerly direction. She halted the vehicle at a stop sign located near the intersection of the two highways. A high bank on the east side of Old Highway 61 obstructed her vision as to vehicles traveling west, and she drove the automobile to a point approximately three feet south of the south line of Highway 547 where she stopped again. Three automobiles passed on Highway 547 and appellee, driving a pickup truck in an easterly direction on Highway 547, ran off the south side of the said highway and into appellant’s automobile, the right front of the pickup truck colliding with the left front of appellant’s automobile. Appellant introduced in evidence nine (9) photographs of the scene. There were no photographs taken immediately after the collision and no physical evidence of the collision was shown.

Wilber Archer had been following appellant in his vehicle prior to the collision. He stopped behind appellant’s automobile and was in that position when the collision occurred. Her automobile was knocked against the embankment on the east side of Old Highway 61 and on the south side of Highway 547. Archer did not observe any skid marks or debris on the highways.

Officer Rip McKwene testified for appel-lee that he arrived at the scene after the collision but before the vehicles had been moved, that he saw skid marks extending from a point in the eastbound lane of Highway 547 to the Greer truck, that there was debris in the eastbound lane and that appellant’s vehicle was off the south shoulder of Highway 547 east of Old Highway 61 against the embankment. Appellee testified that appellant did not stop her vehicle and that she suddenly drove out into Highway 547 in his lane of traffic.

Appellee argues that there is no conflict in the physical facts presented by both parties and that such evidence conclusively proves that the collision did not occur in Old Highway 61, but on Highway 547. He cites Gunn v. Grice, 204 So.2d 177 (Miss.1967) to the effect that where photographs and debris indicating the point of impact between two vehicles completely overwhelm differing oral testimony, the trial judge is justified in granting a peremptory instruction in favor of the party whose position is supported by the physical evidence. However, in the present case, there are no photographs showing the scene immediately after the collision, the position of the vehicles, skid marks and debris. Those facts appear in the record by oral testimony.

Appellant and appellee gave two entirely different versions as to how the collision occurred. Appellant is corroborated in part by Archer, the only other eyewitness. Some of the physical facts support the version of appellant. On this record, the trial court, applying the rule expressed in Paymaster Oil Mill Company v. Mitchell, supra, considering the evidence in the light most favorable to appellant, and disregarding any evidence on the part of appellee in conflict with that favorable to appellant, should have determined that such evidence constituted a question for the jury and should have overruled the motion for a directed verdict.

Here, the case was tried in its entirety, with nothing remaining except instructions, arguments of counsel and deliberation of the jury. We remind trial judges that, after cases have been heard, where there are close questions of fact and law, requests for directed verdicts and peremptory instructions should be denied. Often times juries return verdicts which agree with the thinking of the trial judge. After verdict, if the trial judge is of the opinion that he should have granted a motion for directed verdict or request for peremptory instruction, he may then sustain a motion for judgment n.o.v. In the event of an appeal to this Court, the matter probably could be resolved finally without the necessity and expense of another trial.

For the reasons stated, the case is reversed and remanded.

REVERSED AND REMANDED.

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


text:
    Ronny POST v. B. C. RUTH, Director of Records, Mississippi State Penitentiary.
    No. 50147.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Ronny Post, pro se.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Ronny Post appeals to this Court from an order of the Circuit Court of Sunflower County denying his petition for a writ of certiorari directed to B. C. Ruth, Director of Records at the Mississippi State Penitentiary, to obtain statutory good time under Mississippi Code 1972 Annotated Section 47-5-139 (Supp.1973), in effect at the time he was sentenced in February, 1974, rather than under Mississippi Code 1972 Annotated Section 47-5-139 (Supp.1975), in effect at the time he was admitted to the penitentiary in August, 1975.

Appellant assigns as error the following:

(1) The application of Mississippi Code 1972 Annotated Section 47-5-139 (Supp. 1975) to deny appellant’s statutory good time credit is an ex post facto application of the law, and is therefore unconstitutional.

(2) The application of Mississippi Code 1972 Annotated Section 47-5-319 (Supp. 1975) to deny appellant’s statutory good time credit denies appellant equal protection under the law, and is therefore unconstitutional.

Appellant entered a plea of guilty to burglary in the Circuit Court of Hinds County in February, 1974, and was sentenced to serve a term of seven (7) years in the Mississippi State Penitentiary, which sentence was suspended and appellant was placed on five (5) years probation. The probation was revoked on August 13, 1975, by said court, and he was committed to the state penitentiary on August 15, 1975, without serving any prior time on the burglary charge.

Appellant contends that Mississippi Code Annotated Section 47-5-139 (Supp.1973) which was in effect at the time of sentencing, applied to him and that he was entitled to, and had a vested right to, statutory good time as provided in said section. The section is as follows:

“Commutation of time for good conduct shall be granted by the superintendent and the following deduction shall be made from the term or terms of sentences when no charge of misconduct has been sustained against a prisoner, namely: Three (3) days per month off of the first year’s sentence; four (4) days per month off of the second year of sentence; five (5) days per month off of the third year of sentence; six (6) days per month off of the fourth year of sentence; seven (7) days per month off of the fifth year of sentence; eight (8) days per month off of the sixth year of sentence; nine (9) days per month off of the seventh year of sentence; ten (10) days per month off of the eighth year of sentence; eleven (11) days per month off of the ninth year of sentence; fifteen (15) days per month off of the tenth year, and all succeeding years of sentence.”

The above section was amended, and at the time of his commitment to the state penitentiary, Mississippi Code Annotated Section 47-5-139 (Supp.1975) was in effect, the pertinent parts of said section being as follows:

“Commutation of time for good conduct to be deducted from a maximum term and/or parole eligibility time shall be granted by the classification committee of the correctional system.
(z) The classification committee shall group all inmates into one (1) of four (4) separate and distinct classes with good time to be earned as follows:
(a) Offenders in Class I shall be allowed to earn up to thirty (30) days reduction for each month served.
(b) Offenders in Class II shall be allowed to earn up to twenty (20) days reduction for each month served.
(c) Offenders in Class III shall be allowed to earn up to eight (8) days reduction for each month served.
(d) Offenders in Class IV shall not be allowed to earn any earned time.”

Appellant further contends that the amended act does not apply to him and that it amounts to an ex post facto law which increases the sentence and which denies him equal protection of the law. The purpose of the act is to encourage discipline. It provides that a distinction may be made in the treatment of offenders so as to encourage them to be orderly, industrious and obedient. The good time provided is contingent upon the good conduct of the prisoner, and misconduct ranging from minimal to serious may forfeit all earned good time. The earned time does not become vested until the prisoner is entitled to be discharged after receiving credit for good time.

In Swope, Warden v. Lawton, 83 F.2d 814 (9th Cir. 1936), the Court held that, until a prisoner reaches the penitentiary and is confined therein in execution of his sentence, he is not entitled to credits which only relate to the period of his confinement by the express terms of the statute. Also, in Miller v. Taylor, Warden, U.S. Penitentiary, Leavenworth, Kansas, 313 F.2d 21 (10th Cir. 1962), the Court said:

“Good time allowances do not reduce the sentence but only enable the prisoner to serve the latter part of his sentence outside prison walls, Lopez v. Madigan, 179 F.Supp. 742 (D.C.N.D.Cal.), aff’d 9 Cir., 273 F.2d 617. They are contingent upon the prisoner’s continued good behavior in prison until they are sufficient to effect his release under supervision, Aderhold v. Perry, 5 Cir., 59 F.2d 379; United States ex rel. Johnson v. O’Donovan, 7 Cir., 178 F.2d 810, and they are subject to forfeiture for his conduct after release, 18 U.S.C.A. § 4165.
Thus it is held that the release of a prisoner prior to his serving his maximum sentence is merely ‘an extension of the prison walls’ and his total record under disciplinary restraint, whether in prison or on parole, determines the time of confinement pending the termination of his sentence. United States ex rel. Rowe v. Nicholson, 4 Cir., 78 F.2d 468.” 313 F.2d at 22.

The Georgia Supreme Court held in Balkcom v. Gaulding, 216 Ga. 410, 116 S.E.2d 545 (1960) the following:

“While Code Ann. § 77-320 (Ga.L.1956, pp. 161, 178), provides that ‘The State Board of Corrections shall formulate rules and regulations providing for extra good-time allowances in addition to the statutory good time hereafter provided, to be awarded to deserving and exemplary prisoners,’ and ‘ Upon receipt of a prisoner by any prison or county public works camp operated under the jurisdiction of the State Board of Corrections, said Board shall forthwith compute the aggregate of the maximum extra good-time allowances and statutory good-time allowances that said prisoner can possibly earn for the minimum and maximum sentence or sentences imposed thereon’ (emphasis supplied), a probationer is not a prisoner within the meaning of this statute, and, therefore, one serving a sentence on probation is not entitled as a matter of law to statutory or extra good-time allowances. Code Ann. § 77-309; Code Ann. Ch. 27-27. See Brown v. Akin, 80 Ga.App. 309, 55 S.E.2d 875, and cases there cited.” 116 S.E.2d at 546.

In Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967), the Court was confronted with the question of whether good time authorized under the statute had become vested so as to preclude a forfeiture of the time earned. The Court said:

“The allowance of good time to a prisoner and its denial or forfeiture are strictly matters of statute and are, or course, dependent upon the provisions of the particular statute under consideration. As a general rule the right to a good-time allowance is contingent until the time arises that its allowance will end imprisonment; the grant or denial of such an allowance is discretionary with the executive officer charged with the administration of its provisions; and its allowance is a matter of grace rather than a right. See Anno. 95 A.L.R.2d 1267 (1964).” 386 F.2d at 686.

The Court held that the above principles were applicable to state statutes, citing the case of Uryga v. Ragen, 181 F.2d 660 (7th Cir. 1950), which construed a similar Illinois statute in the following manner:

“[Ajllowance is not a vested right but a conditional one, which, by the statute, becomes effective only when the prisoner, having conducted himself properly, has earned an allowance. ... In other words, a prisoner’s good time is allowed at the end of his term of imprisonment, when and if its allowance, together with the time served, will entitle him to his discharge, the sentence thus having been served in full. The right to good time, then, is contingent until the time arrives when its authorized allowance will end his term of imprisonment.” 181 F.2d at 663.

In Singleton v. Shafer, 313 F.Supp. 1094 (E.D.Pa.1970) the Pennsylvania legislature had abolished good time and it was contended by Singleton that he and other inmates of the State Correctional Institution in Pennsylvania similarly situated were denied equal protection of the law for the reason that other states provided good time in their penal systems. The Court held that federal law does not require that the states maintain even a minimal system of parole or pardon, much less a particular scheme for giving credit for good behavior and that a state may provide any system of commutation it desires so long as all prisoners within its jurisdiction are treated equally. There was no violation of prisoners’ rights to equal protection of the law. The fact that other states continue to give credit for good time and that Pennsylvania chose to discontinue the practice afforded no basis for a claim of denial of the equal protection of the law.

The same reasoning applies in the present case and where all prisoners in the Mississippi State Penitentiary are treated equally, there is no violation of rights to equal protection of the law.

The record indicates that between August 15, 1975, and September 30, 1976, Post was credited with more good time under the 1975 Supplement than he would have been credited under the 1973 Supplement, and was benefitted more under the act he complains about.

AFFIRMED.

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


text:
    Charles E. MARTIN v. STATE of Mississippi.
    No. 50164.
    Supreme Court of Mississippi.
    Feb. 8, 1978.

      Eaves & Eaves, Jackson & Louisville, G. Jyles Eaves, Louisville, John Arthur Eaves, Jackson, Henry L. Rodgers, Louisville, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Charles E. Martin was jointly indicted with his wife in the Circuit Court of Webster County for manslaughter of Joseph Brian Ramage, his twenty-six-month-old stepson. The trial court sustained a motion for severance, he was tried, convicted and sentenced to twenty (20) years. From that conviction and sentence he appeals here.

Appellant assigns the following errors in the trial below:

(1) The court erred in refusing to direct a verdict in favor of defendant.

(2) The court erred in admitting testimony of the State’s expert witnesses.

(3) The court erred in granting the State’s Instruction No. 3.

(4) The court erred in permitting a rebuttal witness for the State to testify.

(5) The court erred in admitting photographs of the deceased.

(6) The court erred in failing to grant a change of venue.

On May 5, 1976, Terence Lee Atkins saw appellant running across the yard with a child in his arms. Atkins got into his automobile, caught up with appellant on the street, and took them to the emergency room of the Webster County Hospital. Appellant told Atkins that the child had fallen.

Mrs. Gayle Hitt, duty nurse at the hospital, detected that the child had no respiration, that there were multiple contusions about his head, that both eyes were black and swollen, that his pupils were of unequal size and non-reactive, and that he was not breathing. Appellant told her that the child had fallen from his high chair a short while before. Emergency treatment was administered by attempting to open the child’s air passage, a tube was inserted in his treachea and he was flown to the University Medical Center in Jackson. Prior to the Jackson trip, the sheriff of Webster County was called to the hospital, he noted the bruises upon the child’s body, and was also told by appellant that the child was injured by a fall from the high chair.

When the child arrived at the University Hospital, he was being artificially breathed and was in a comatose state. He was treated by two pediatricians and a neurologist, but the treatment was ineffective and the child expired after about seven (7) hours. An autopsy was performed in the presence of Drs. Hogan and Ryan, who, along with Dr. Sanford, were the attending physicians. The pathologist reported the cause of death was brain swelling as a result of trauma. Injuries to the child consisted of multiple bruises and abrasions about the head, hemorrhages in the eyes, bruises over the trunk, over the genitalia, back and extremities. No lump or knot was detected on his head.

Dr. Gwendolyn Hogan, an expert in the field of pediatrics and pediatric neurology, testified that, in her opinion, the injuries could not have been caused by falling from a high chair, that there was evidence of multiple injuries, and that it would be impossible for a single fall to produce injuries such as those sustained by the Ramage child. She further testified that the type brain injuries incurred by the child was the result of jostling the brain when the head is battered from side-to-side and which often results in tearing of the bridging vessels and swelling of the brain. Further, that if the child had fallen from the chair, there would have been a noticeable lump or knot on his head. The physicians were unable to find any such condition.

Dr. Nell Ryan, a specialist in pediatric neurology, who had extensive experience with injured children, testified that, in her opinion, the bruises and injuries sustained by the child could not have been caused by falling from a high chair. She was present at the time of the autopsy, and, in her opinion, the cause of death was brain injuries with cerebral edema (brain swelling).

Dr. Robert Sanford, a neurosurgeon, testified that he was called in by Dr. Hogan for consultation to determine whether anything could be done for the serious brain damage that had occurred. They decided the situation was hopeless and there was nothing surgery could do to help the child. It was his opinion that the child died from brain injuries, which were the result of multiple bruises to the head, and that the injuries could not have occurred from a single fall.

Appellant testified that he was at home alone with the child, that he started to feed him, that a puppy jumped up against the child’s high chair, that the child fell out of the chair and struck his head on the floor, which resulted in the fatal injury. He also stated that the child had a big red knot on his forehead where he struck the floor.

I.

Did the court err in refusing to direct a verdict of not guilty for appellant?

The rule is settled that, in passing on a motion for directed verdict, the trial court considers as true all evidence in favor of the State, along with reasonable inferences to be drawn therefrom. Lee v. State, 338 So.2d 395 (Miss.1976); Glass v. State, 278 So.2d 384 (Miss.1973). When this rule is applied here, it is clear that the evidence is sufficient to withstand the motion for a directed verdict.

Appellant contends that the child’s injury and death resulted from an accident, that is, a fall from his high chair. However, all the evidence reflects that the child had multiple injuries about his head and body and that the cause of death was multiple injuries to the brain which could not have resulted from one fall. Appellant’s version of the injuries sustained by the child is in direct conflict with the testimony of expert witnesses who examined and treated the child and is in conflict with the physical facts, and, thus, a question as to appellant’s guilt was presented for determination of the jury. Hancock v. State, 209 Miss. 523, 47 So.2d 833 (1950); Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

The motion for directed verdict was properly overruled.

II.

Did the court err in admitting testimony of the State’s expert witnesses?

Appellant contends that the physicians who attended and treated the child should not have been permitted to testify for the reason that their opinions and testimony invaded the province of the jury which properly should have determined the cause of the child’s death.

It is elemental that the testimony of physicians (experts in their fields) is competent on the cause of the patient’s death. Likewise, after examining the injuries, they are competent to express opinions as to whether or not a fall could have caused same. Duck v. State, 247 So.2d 689 (Miss.1971); Tippit v. Hunter, 205 So.2d 267 (Miss.1967); Rayner v. Lindsey, 243 Miss. 824, 138 So.2d 902 (1962). There is no merit in this assignment.

III.

Did the court err in granting the State’s Instruction No. 3?

Instruction No. 3 [See Appendix] for the State advised the jury what constitutes manslaughter. However, neither of the phrases “in a cruel or unusual manner” or “by the use of a deadly weapon,” which are contained in the manslaughter statute, appears in the instruction. We have held that omission of the words “by the use of a dangerous weapon” does not constitute reversible error, [Robinson v. State, 223 Miss. 303, 78 So.2d 134 (1955)], and that omission of the words “in a cruel and unusual manner” does not constitute reversible error where it was uncontroverted that the deceased was the victim of a brutal beating. Mallette v. State, 349 So.2d 546 (Miss.1977).

The evidence is overwhelming here that the child’s death was the result of a cruel and unusual beating, and Mallette controls on this question. Further, no objection was made to the instruction before the trial court, and it is not properly before this Court for review. Johnson v. State, 340 So.2d 738 (Miss.1976); Patterson v. State, 289 So.2d 685 (Miss.1974); Jones v. State, 279 So.2d 594 (Miss.1973).

IV.

Did the court err in admitting rebuttal evidence for the State?

Appellant testified in his own behalf that the child fell from his high chair, which resulted in the fatal injury, and that the child had never fallen from the high chair before. Miss Patricia Alston testified in rebuttal that she visited the home of appellant two days before the child’s death. She saw the child at that time with bruises on his face, his tongue was bitten, and his eyes were red. Appellant told her the child had fallen out of the high chair. It is argued that, since Miss Alston testified in rebuttal, appellant had no opportunity to interrogate other witnesses on those matters contained in her testimony. There is no merit in this contention. She might have been the last witness to testify for the State on its case in chief, and no questions could have been asked other State’s witnesses about the facts contained in her testimony. The statements testified to by Miss Alston were admissions against interest of the appellant and it was not necessary to lay a predicate for contradicting his testimony. Appellant testified in surrebuttal, and, assuming ar-guendo the rebuttal testimony was not proper, it was not prejudicial error. Breakfield v. State, 275 So.2d 860 (Miss.1973). Lastly, appellant did not object to the witness’s testimony, and he cannot complain of same here. Baker v. State, 327 So.2d 288 (Miss.1976).

V.

Did the court err in admitting photographs of the deceased?

Eight (8) color slides were introduced in evidence by the State. They showed bruises, contusions and injuries on the body of the deceased. Those slides had evidentiary value and were important to the State’s case in contradiction of the testimony and contention of appellant that one fall from the child’s high chair accidentally caused his death. The trial judge did not abuse his discretion in admitting them in evidence. Mallette v. State, supra; Hancock v. State, supra.

VI.

Did the court err in failing to sustain appellant’s motion to change venue?

The chronology of events in appellant’s trial follows:

(1) The grand jury returned an indictment against his wife and him on May 20, 1976.

(2) The circuit court convened in Webster County on the fourth Monday in May, 1976.

(3) Motion for change of venue was filed by appellant May 24, 1976.

(4) Motion for psychiatric examination was filed by appellant May 24, 1976.

(5) Motion for continuance was filed by appellant May 24, 1976.

(6) Order for psychiatric examination was entered by the court on May 24, 1976, which had the effect of sustaining the motion for a continuance of the case.

(7) The trial court entered an order November 3, 1976, setting the case for trial December 2, 1976, which order was approved by attorneys for appellant.

(8) Motion for special venire was filed by appellant November 23, 1976, and was sustained by the court on the same date.

(9) Order sustaining appellant’s motion for severance was entered December 2, 1976.

The record does not reflect that any order was entered on the motion to change venue. It is the responsibility of the movant to obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of same. Grant v. Planters’ Bank, 5 Miss. [4 How.] 326 (1840). Considering the procedures enumerated hereinabove, it is apparent that appellant did not pursue the motion for change of venue and that he waived and abandoned same. Consequently, there is no merit in this assignment of error.

The crime for which appellant was convicted is one of the most heinous in criminal law. The maximum sentence of twenty (20) years imposed upon the appellant is lenient punishment when compared to that pronounced in Holy Writ: “But whoso shall offend one of these little ones it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.”

There being no reversible errors in the record, the judgment is affirmed.

AFFIRMED.

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

APPENDIX

INSTRUCTION NUMBER S 3

The Court instructs the Jury that Manslaughter is the killing of a human being in the heat of passion, without malice, and without the authority of law and not in necessary self-defense, and if the Jury believes from the evidence in this ease beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis consistent with this innocence, that the defendant, Charles Martin, so killed the deceased, Joseph Brian Ramage, a human being, then it is your sworn duty to find the defendant guilty of Manslaughter.


author: WALKER, Justice,

text:
    Charles LUCKETT v. STATE of Mississippi.
    No. 50387.
    Supreme Court of Mississippi.
    Feb. 8, 1978.

      Louis Fondren, Jr., Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a conviction of armed robbery in the Circuit Court of Jackson County, Mississippi. Appellant was sentenced to twenty years in the custody of the Mississippi Department of Corrections.

On appeal, appellant’s sole assignment of error is that the verdict is against the overwhelming weight of the credible testimony. In passing upon the sufficiency of evidence to support a verdict, this Court must accept as true the evidence which supports the verdict, where there is a conflict between the evidence presented by the state and that presented by the accused. Spikes v. State, 302 So.2d 250 (Miss.1974).

Larry Mason testified that he was working at the Majik Market on Belair Road in Pascagoula at about 10:30 on the night of February 16, 1977, when three men entered the store. One of them pulled a pistol and ordered Mason to open the cash register; appellant ordered Mason to open the safe. After taking approximately $300 from the register and safe, the men ordered Mason to go into the back room, and when he did, they left.

Clifton Williams, who earlier had pled guilty to participating in the robbery and who was awaiting sentence at the time of appellant’s trial, testified that he, appellant, and two other men planned the robbery and that he acted as the lookout outside the store. He stated that he was looking into the store at one point and saw appellant taking money from the safe. According to Williams, after the robbery he and his cohorts went back to an apartment where the money was divided, but he did not get his share.

Ervin Warren testified that on the night of the robbery he came home from work and overheard appellant, a codefendant, Clifton Williams and several others talking about hitting a Majik Market. Warren left the apartment and when he came back, appellant told him that they had hit the store. Warren also stated that he saw the money and money wrappers.

Appellant put on only one witness for the purpose of establishing an alibi. However, this witness stated that while he and appellant were together all night on one Wednesday in February, 1977, he could not be sure of the date. The robbery took place on a Wednesday night.

Appellant’s contention that the verdict of the jury was contrary to the overwhelming weight of the credible testimony is based upon alleged discrepancies between the testimony given by Larry Mason and Clifton Williams at the preliminary hearing and what they stated at trial. According to appellant, Mason, who positively identified appellant at the trial, was unable to do so at the preliminary hearing. However, appellant overstates his case. The record shows that counsel for appellant asked Mason a compound question regarding appellant’s participation in the robbery. The question and answer were as follows:

Q. Well, now, when you testified, though,, these men and one other was sitting there weren’t they?
A. Inside the courtroom.
Q. I ask you to remember very carefully, if you didn’t identify that man — the man on your right, not the man on your left — as having been involved in the robbery? —The third man that went to the safe? Isn’t that correct?
A. Yes, sir.

On redirect, the prosecutor asked the following questions and received the following answers:

Q. I would like for you to look at the two defendants.
A. (Witness complies.)
Q. I ask you today do you see anyone in this courtroom that participated in that robbery?
A. Yes, sir.
Q. Would you point him out please?
A. (Points to defendant.)
BY MR. KREBS: May the record reflect he is pointing to the defendant Charles Luckett.
Q. Would you tell the ladies and gentlemen of Jury what Mr. Luckett did?
A. He asked me to open the safe and after I finally got it opened he got into it and took the money. Well, they took everything out of the safe.
Q. And you do admit to Mr. Fondren at the time of the preliminary hearing you picked the wrong man?
A. I could have, yes.
Q. Is there any doubt in your mind today who you are identifying?
A. No, there is not a doubt.

This testimony could be interpreted, as it is by appellant, to mean that Mason was entirely unable to identify appellant at the preliminary hearing. However, it could also be interpreted to mean that Mason simply made a mistake in identifying the robber who told him to open the safe. Because of the emphasis in the questions on the role played in the robbery by the person whom Mason identified at the preliminary hearing, we are of the opinion that it cannot be stated categorically that the trial record shows that Mason did not identify appellant at the preliminary hearing as having been a participant in the robbery. The record merely shows that at the preliminary hearing, Mason identified someone other than appellant as the one who told him to open the safe.

Appellant has a stronger argument with respect to the testimony of Clifton Williams. Williams testified at the trial that Maynard Dailey, who was tried with appellant and acquitted, drove the getaway car. However, at the preliminary hearing, Williams testified that Dailey was not involved. Williams’ explanation was that he lied at the preliminary hearing because Dai-ley had threatened him if he (Williams) implicated Dailey.

In Hill v. State, 199 Miss. 254, 24 So.2d 737 (1946), a similar situation was presented and the Court there stated:

The jury, of course, were the triers of fact, charged with the duty of rendering a verdict according to the evidence. They were the sole judges of its weight and the credibility of the witnesses, Witt v. State, 159 Miss. 478, 132 So. 338; Henderson v. State, 187 Miss. 166, 192 So. 495. In the exercise of this judgment, they accepted the testimony offered on behalf of the state as presenting the truth of what occurred, which testimony included the evidence given by Robert Thomas, and it is not for us to say that their verdict should be set aside unless manifestly wrong and against the overwhelming weight of the testimony. In this case, it might appear that the state’s case was substantially based on a discredited witness, but the jury had its responsibility, as stated, and apparently believed him to be telling the truth on this occasion. We cannot measure how much they believed, or how little. Nor can we appraise how little or how much of the evidence on behalf of appellant the jury believed. The jury had the right to believe portions of testimony of witnesses, rejecting other portions. Triplett v. State, 159 Miss. 365, 132 So. 448. However, the testimony of Hill Walton, in our judgment, was sufficient to convict if the jury believed it to be true, as they apparently did.
As stated, we have no way of ascertaining what weight or effect the trial jury really gave to the testimony of Thomas, and we cannot say from the mere verdict of guilty in this case that it was founded solely on his testimony, especially where there is another witness, whose testimony materially corroborated him. Manifestly, by their verdict, the jurors declared their conviction that appellant was guilty of the crime charged against him, and even though the key witness for the state may have been impeached by several witnesses as to his credibility, and there were discrepancies in his testimony rendered on the occasion of the two separate trials, it was the province of the jury to pass upon the credibility of the witnesses, and also the discrepancies in the testimony of the witness given on the former trial and his testimony in the present trial. (199 Miss, at 260-61, 24 So.2d at 739).

See also Vanderpoel v. State, 251 So.2d 922 (Miss.1971).

In the case at bar, the testimony of Clifton Williams was substantially corroborated by other witnesses. For example, Larry Mason testified that he never saw Maynard Dailey. This is consistent with Williams’ testimony that Dailey remained in the car throughout the robbery. In addition, we have Mason’s identification of appellant, however shaky it may have been. Finally, and most significantly, there is the testimony of Ervin Warren who overheard appellant and others plotting the robbery and who was told by appellant that they had committed the crime.

In view of the foregoing, we are of the opinion that the jury had ample evidence upon which to base its verdict and that appellant’s contentions are without merit. Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

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


text:
    William Alton WOOD v. STATE of Mississippi.
    No. 50523.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    D. Scott Yeoman, Pontotoc, for appellant.

      A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from an order of the Circuit Court of Pontotoc County, Mississippi, denying a writ of error coram nobis.

On November 8, 1976, petitioner Wood pled guilty to charges of burglary and larceny. Subsequently he was sentenced to seven years in the Mississippi State Penitentiary. On April 4, 1977, while incarcerated, Wood filed this petition for writ of error coram nobis alleging that his plea of guilty was induced by a promise from the court which was not fulfilled, and in the alternative, that the guilty plea was not freely and voluntarily given. After a hearing, Judge L. T. Senter found no promise of inducement was made and held the plea was freely and voluntarily given.

The issues presented on appeal are:

(1) Was the circuit judge erroneous in his finding of fact that no promise of inducement was made?

(2) Was the circuit judge correct in holding that the plea was freely and voluntarily given based on the record at the time the plea was given?

THE FACTUAL DETERMINATION

At the hearing, appellant Wood testified that he told his attorney he would plead guilty if Judge Wicker would be the sentencing judge and pass sentence immediately. According to Wood, Judge Wicker, prior to the plea, promised him he would be sentenced no later than two-thirty on that same day. He also testified that he would not have pled guilty but for that promise.

Wood’s attorney testified that there had been no discussion between himself and his client with regard to who would be the sentencing judge prior to pleading guilty. He further testified that to his knowledge, Judge Wicker never promised to be the sentencing judge for his client. His testimony also revealed that Wood had provided him with no defense to the charges.

Judge Wicker testified that he remembered Wood asking him if he would be the sentencing judge, but replied that he could not give him any assurance about who would sentence him or anything about the sentence.

In Botts v. State, 210 So.2d 777 (Miss.1968), we pointed out that:

The burden of proof is upon the petitioner on an application for a writ of error coram nobis to establish to a reasonable probability facts upon which he relies for relief. (210 So.2d at 779).

The Court went on to say:

The question as to whether or not a new trial should be granted on an application for writ of error coram nobis is largely within the sound discretion of the trial court, . . .. (210 So.2d at 779).

Based on Judge Wicker’s denial of any promise to induce the plea, coupled with the denial of Wood’s own attorney, the trial judge concluded Wood failed to meet the required burden of proof. On these facts, the finding was well within the discretion of the judge and manifestly correct.

THE VOLUNTARINESS OF THE PLEA

Having concluded that Wood failed to establish any promise to induce his guilty plea, the question remains whether, based on the record, the plea at the time given was done freely and voluntarily. In Alexander v. State, 226 So.2d 905 (Miss.1969), the standard for guilty pleas was stated as:

The trial court should not accept a guilty plea or a change from a not guilty to a guilty plea without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. (226 So.2d at 909).

The transcript of the plea hearing which was introduced into evidence during the hearing on the coram nobis petition, reveals the following questions were asked and responses given:

Q. . . .is your plea of guilty voluntary, that is, is it made freely on your part without any threats or any promises?
A. Yes, sir.
Q. Do you fully understand the consequences of your act in pleading guilty to the charge, that is, do you understand that when you plead guilty you are admitting that you did in fact commit this offense?
A. Yes, sir.
Q. Do you understand that when you plead guilty you waive your right to a trial by jury?
A. Yes, sir.
Q. Do you understand that when you plead guilty you waive the requirement that the State prove this case against you beyond a reasonable doubt?
A. Yes, sir.
Q. Do you understand that when you plead guilty you also waive your right to be confronted here in open court by the witnesses against you?
A. Yes, sir.
Q. Do you fully understand the nature of the charge against you, and before you answer that let me briefly in laymen’s terms explain it to you. You are charged by an indictment with the offense of Burglary and Larceny, it is hcarged (sic) that you broke into a building belonging to Bobby Pannell, doing business as Pannell’s Refrigeration and Appliance and that you broke into that building with the intent to steal and that after having broken into that building with the intent to steal, that you did take, steal and carry certain items of personal property belonging to Bobby Pannell, the property being a number of radios and assorted items of radio equipment, do you understand what you are charged with?
A. Yes, sir.
Q. Did you commit this crime?
A. Yes, sir.
Q. Do you understand that upon your plea of guilty this Court may impose upon you a sentence of up to seven years in the custody of the State Board of Corrections—
A. Yes, sir.
Q. —to be spent in some State Facility to be selected by the State Board of Corrections?
A. Yes, sir.
Q. For a period of seven years?
A. Yes, sir.
Q. Do you understand that under the laws of our State, you will not have the right to appeal to our Supreme Court after you enter a guilty plea?
A. Yes, sir.

The standards of Alexander that the plea be voluntarily made with understanding of the nature of the charge and the consequences of the plea were not only met but surpassed.

There being no reversible error, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: INZER, Presiding Justice,

text:
    Stanley HOWELL v. STATE of Mississippi.
    No. 50129.
    Supreme Court of Mississippi.
    Feb. 8, 1978.

      Gene Stringer, Louisville, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and WALKER, JJ.
   INZER, Presiding Justice,

for the Court:

This appeal involves the question of whether the trial court abused its discretion in overruling a motion by Stanley Howell to vacate the judgment adjudicating him guilty of burglary and granting him a new trial on the ground of newly discovered evidence.

Howell was tried and convicted in the Circuit Court of Attala County on September 10,1975, for the crime of burglary. He appealed to this Court and his conviction was affirmed without an opinion on November 16, 1976. 339 So.2d 60 (Miss.1976). Shortly thereafter, on December 8, 1976, he filed a petition in this Court styled “Petition for Leave to File in the Trial Court a Motion to Vacate Judgment and for a New Trial on the Grounds of Newly Discovered Evidence.” This Court, being of the opinion that the petition contained sufficient substance to grant Howell leave to file his petition in the trial court sustained the petition and granted him leave to file a motion in the trial court. A full hearing was had on the motion and the court was of the opinion that the evidence adduced by Howell did not establish a cogent reason for vacating the judgment, nor was it sufficient to establish that it was practically conclusive that if introduced in a new trial, a different result would be reached. An order was entered overruling the motion for a new trial. Hence, this appeal.

The newly discovered evidence which appellant contends justifies granting him a new trial consists of the confession of one Jan Overstreet that he and another person committed the crime for which appellant was convicted. The trial court in its order overruling a motion for new trial made a finding of fact, which in part states:

Having heard the evidence produced at this hearing by both parties and having heard argument of counsel, the Court finds from them in the month of December, 1976, the Defendant was a cellmate in the Attala County Jail with one Jan Overstreet. The Defendant alleges that Overstreet confessed to said crime to the Defendant and another cellmate. Defendant’s counsel then talked with Over-street and obtained from him two written statements purporting to be Overstreet’s confession to having committed the crime with which Defendant is charged. These statements were admitted into evidence and appear in this record. The herein-above recited schedule of events followed the execution of these statements.
The evidence on this hearing is to the effect that when these statements were made no officer of the law was present and that Overstreet was not in custody in relation to the crime which he related in his statements. When called as a witness on this hearing, Overstreet advised the Court that he had not consulted with his lawyer, although he had one, and the Court sent for his attorney and required a conference between them. Thereafter, Overstreet testified that his statements were true and correct but he declined to answer any questions as to the details thereon otherwise than that the statement was true and correct and was executed by him. He also related that he had an accomplice, one Ray McBride, who was not produced by the Defendant, and that they related the fact that they had committed the crime to one Randy Hut-chison, the nephew of the Defendant, on the night the crime was committed. Hutchison’s testimony was that Over-street and McBride made such a confession to him in the presence of one Roger McBride. Roger McBride’s testimony was that no such confession ever took place in his presence. The Court finds from the evidence that Overstreet did not come forward with any confession for a period of approximately two (2) years after the crime was committed and that the nephew of the Defendant, Randy Hutchison, never communicated the statements he alleged were made to him to the Defendant until long after the Defendant was convicted and his case affirmed. The Court further finds that Randy Hutchison wrote a letter to the County Prosecuting Attorney alleging that the Defendant did not commit the crime, but that this was done after the Defendant’s conviction and despite the fact that Hutchison and his uncle, the Defendant, were convicted at the same term of court and were in jail together prior to their trial.
The Court finds that the Defendant produced no physical facts to substantiate the confession and finds on the contrary that the evidence adduced at this hearing was to the effect that there was only one set of footprints leading away from the scene of the crime which were followed by the arresting officer and that, therefore, the only physical evidence offered relating to the confession impeaches it in the particular that it claims the crime was committed by two people.
The Court in considering whether a new trial should be given to the Defendant on the basis of this hearing is required by the nature of the motion to consider the matter with great care and caution. Although that requirement is less severe in criminal matters it nonetheless applies. The Court is charged with an equal duty to see that the Defendant is provided a fair trial and to see that a proper administration of justice results.

The Court having seen and heard the witnesses for the movant made certain observations relative to their testimony. In commenting on the testimony of Randy Hutchison, the court stated:

On this hearing the evidence that the confession of Overstreet was made spontaneously to a close acquaintance shortly after the burglary had occurred is impeached by Roger McBride’s statement that that conversation never took place in his presence. There is no eye witness to the relation of the confession other than the confessant, and there are no other physical facts in the record to support the confession. In the opinion of this Court the testimony of Randy Hutchison relative to the spontaneous confession is negated by the fact that, as the record shows, he never communicated the confession to the Defendant, his uncle, even though he knew that he had been indicted to a charge, was in jail with Hutchison while he was awaiting trial, and even though Hutchison knew that the Defendant, Howell, had been convicted of the crime. It is incredible that with a close relationship he did not reveal this confession to the Defendant although he had every opportunity to do so if it were true.

The trial court was of the opinion that the evidence offered by the movant merely tended to impeach the evidence of Officer Steed who testified at the trial and on this hearing that in making a check of the Skill Center he saw a man inside the building in the act of committing the burglary and that there was only one set' of footprints leaving the building. He identified appellant as being the man he saw in the building.

The principal assignment of error is that the trial court was in error in overruling appellant’s motion to vacate the judgment and for a new trial on the ground of newly discovered evidence. It is contended that the appellant met requirements laid down in Lang v. State, 230 Miss. 147, 163, 92 So.2d 670 (1957), and the trial court should have vacated the judgment and granted a new trial. In arriving at its decision, the trial court was well aware of the Lang case and discussed the facts of this case in the light of that decision.

When we granted appellant leave to file his motion for a new trial on the ground of newly discovered evidence, we in effect held that the claimed newly discovered evidence presented a question of sufficient gravity with respect to the guilt or innocence of the defendant to warrant a judicial determination of whether the conviction should be set aside and a new trial granted. The scope of judicial inquiry extended not only to the truth of the newly discovered evidence, but also to the probative effect of such evidence to produce a different result on a new trial. The trial court considered the evidence accordingly, and in the exercise of its judicial discretion decided that the motion should be overruled. The scope of our inquiry on appeal is to determine whether the trial court abused its discretion in making this determination. After a careful review of the record, we are unable to say that the trial court abused its discretion or was manifestly wrong in failing to sustain the motion to vacate the judgment and to grant a new trial. The trial court observed and heard the witnesses as they testified and was in a much better position to determine the truth of the alleged newly discovered evidence and its probative value. If we assume that on another trial that Overstreet would voluntarily testify to the facts set out in his sworn statement, we do not think it would be reasonably certain that another jury would reach a different result in this case.

Appellant also contends that the trial court was also in error in failing to sustain his motion to vacate when it learned that the State of Mississippi received knowledge of newly discovered evidence which would tend to acquit the defendant and did not make this newly discovered evidence available to the appellant, who did not gain knowledge of the evidence until approximately one year later. This contention is based upon the testimony of Randy Hutchison who testified that after appellant’s conviction was affirmed, he wrote the county attorney and told him that someone other than the appellant committed the crime, but he did not tell him who committed the crime, or the basis of his statement. We are unable to find anywhere in the record where this proposition is raised in the trial court and for that reason it is not properly before the court, but in any event it is without merit.

The other assignment of error is without merit and for the reasons stated, this case should be and is affirmed.

AFFIRMED.

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