author: SUGG, Justice, for the Court:

text:
    Helen L. McCLUSKEY, Administratrix of the Estate of Carol McCluskey, Deceased, v. A. J. THOMPSON et al.; BECHTEL POWER CORPORATION and the Travelers Insurance Company v. Helen L. McCLUSKEY etc.
    Nos. 50002, 50011.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Rehearing Denied Nov. 1, 1978.

      John B. Clark, Daniel, Coker, Horton, Bell & Dukes, Jackson, for Bechtel Power Corp. and Travelers Ins. Co.
    Teller, Biedenharn & Rogers, Landman Teller, Vicksburg, for McCluskey.
    Watkins & Eager, Hassell H. Whitworth, Jackson, for A. J. Thompson et al.
   SUGG, Justice, for the Court:

Mrs. Helen L. McCluskey brought suit in the Circuit Court of Warren County, against A. J. Thompson, et al., who were coemployees of the decedent, Carol McClus-key, for the alleged wrongful death of the decedent. According to the declaration, plaintiff’s husband, Carol McCluskey, was employed by Bechtel Power Corporation which was engaged in the construction of the Grand Gulf Nuclear Power Plant located in Claiborne County. On July 1, 1975, a portable light plant, weighing about 3,000 pounds, fell from a crane and killed McClus-key.

A. J. Thompson demurred to the declaration on the grounds that they owed no individual duty to the decedent and that the Mississippi Workmen’s Compensation Act bars a common law tort suit against them as fellow employees for the work-related injuries and death suffered by the decedent. In sustaining the demurrer, the trial court stated “[i]t is the court’s opinion that the purpose and spirit and philosophy of the Workmen’s Compensation Act was to make compensation the exclusive remedy of the employee where he is injured by the employer or any of the employees.” Plaintiff appealed.

The other appellants, Bechtel and Travelers, were named in the declaration as defendants because they paid workmen’s compensation benefits to the plaintiff, as the widow of McCluskey. Bechtel and Travelers claimed they would be entitled, pursuant to section 71-3-71 Mississippi Code Annotated (1972), to “the first fruits of the net of any recovery, from such third party defendants here sued.” The declaration sought to have them “assert such, if any, claims which they may have in the premises.” Bechtel and Travelers demurred on the ground that suit against them was precluded by section 71-3-9 Mississippi Code Annotated (1972), and requested that they be dismissed as defendants without prejudice to their rights to later intervene as plaintiffs under section 71-3-71 Mississippi Code Annotated (1972). In overruling their demurrer the trial court found that although section 71-3-71 establishes a right to intervention, it puts no time limit on the exercise of this right. Finding this to be an undesirable “situation of uncertainty,” the trial court “in its common law discretion” ordered that Bechtel and Travelers either intervene within thirty days as party plaintiffs, or disclaim any interest in the proceeds of any recovery by plaintiff. They now appeal from that order.

There are two issues on appeal here:

(1) Whether the trial court erred in finding that workmen’s compensation is the exclusive remedy of the employee where he suffers a work-related injury as a result of the negligence of a coemployee; and

(2) Whether the trial court erred in setting a time limit within which an employer or insurer must intervene under section 71-3-71 Mississippi Code Annotated (1972) or disclaim any interest in a third party suit.

The question of whether an employee who is injured because of the negligence of a fellow servant can sue his negligent fellow servant or is limited to benefits under the Workmen’s Compensation Act was considered in Stubbs v. Green Brothers Gravel Co., Inc., 206 So.2d 323 (Miss.1968).

Stubbs sued Green Brothers Gravel Co., Inc. and its employee, Jamie Brown, and alleged that he was injured when his vehicle was struck by a truck driven by Brown which was owned by Green. He also alleged that Brown was not keeping a proper lookout, did not have his vehicle under control or in proper repair, and these negligent acts were contributing proximate causes of plaintiff’s injuries. Green and Brown denied the charges and specially pled two defenses in bar of the action. The first defense was that Stubbs was an employee of Green, his injuries occurred in the scope of his employment, and the Workmen’s Compensation Act was Stubbs’ exclusive remedy. The second defense was that Brown and Stubbs were fellow servants of Green at the time of the collision, and each was engaged in the performance of his duties within the scope of his employment at the time of the collision. The trial court sustained the first defense and held that the Workmen’s Compensation Act was Stubbs’ exclusive remedy. On appeal, we affirmed and stated:

This case is what Larson calls an ‘upside-down compensation case,’ in the form of a negligence action in which the employee is trying to get out from compensation coverage to escape the exclusive provisions of the act, and the employer is asserting compensation coverage. I Larson, Workmen’s Compensation Law § 26.-10, at 452.11 (1965). Reason and consistency require that we apply the provisions of the act and the decisions interpreting it with an equal hand, both where coverage is asserted and where the exclusive remedy provisions of the statute are involved. See 2 id. § 65.10 (1961).
In summary, the circuit court was correct in dismissing this tort action, because appellant’s exclusive remedy is under the Workmen’s Compensation Act. (206 So.2d at 325).

We held that Stubbs’ exclusive remedy was under the Workmen’s Compensation Act and dismissed his tort action against both his employer and his fellow servant. Our holding in Stubbs prohibited recovery by an injured employee against his fellow servant because his exclusive remedy was under the Workmen’s Compensation Act. The opinion did not assign reasons for holding Stubbs’ exclusive remedy was under the Workmen’s Compensation Act. We therefore deem it necessary to discuss the effect and purposes of the Act. If plaintiff could recover from a fellow servant of the decedent, it would permit an employer or compensation insurer to shift the burden of workmen’s compensation benefits to a fellow servant.

The Workmen’s Compensation Act was designed to compensate victims of industrial accidents and aid in their rehabilitation and restoration to health and vocational opportunity. Section 71-3-1 Mississippi Code Annotated (1972). The Workmen’s Compensation Act represents a wide departure from common law because the Act precludes a common law tort action by an employee against his employer but, in return, assures the employee an award without the necessity of showing fault or negligence on the part of the employer. The legislature has substituted a no-fault compensation system to replace the common law action by employees against employers and thus determined that the cost of this no-fault compensation should be borne by the employing industry. This brings into play the concept of enterprise liability and logically places the burden of providing compensation for industrial injuries upon the employer. Compensation for industrial injuries is rightfully placed upon the employer because, (1) industrial injuries are causally related to the fact of employment, and (2) the employer is in a position to pass this cost to society in the form of higher prices.

If the plaintiff in this action is permitted to recover from the fellow servants of the deceased employee, the employer and carrier would be fully reimbursed for all benefits paid the statutory beneficiaries of the deceased employee. This would effectively transfer the ultimate burden of providing compensation from the industry, where it belongs, to fellow servants, where it does not belong.

We have held that any construction given to the Workmen’s Compensation Act must be sensible as well as liberal. Deemer Lumber Co., et al. v. Hamilton, 211 Miss. 673, 52 So.2d 634 (1951); Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148 (1950) (suggestion of error overruled 211 Miss. 613, 53 So.2d 69 (1951)). Another familiar rule of statutory construction is that the intent of the legislature must be determined by the total language of the statute and not from a segment considered apart from the remainder. Brady v. John Hancock Mut. Life Ins. Co., 342 So.2d 295, appeal dismissed 434 U.S. 804, 98 S.Ct. 32, 54 L.Ed.2d 61 (Miss.1977); Miss. Public Service Commission v. City of Jackson, 328 So.2d 656 (Miss.1976); McCaffrey’s Food Market, Inc. v. Mississippi Milk Commission, 227 So.2d 459 (Miss.1969). Also, the intent of the legislature must be determined by studying words used in a statute in context. Akers v. Johnson’s Estate, 236 So.2d 437 (Miss.1970).

When these rules of statutory construction are applied to the Workmen’s Compensation Act in its entirety, it is apparent that the legislature did not intend to allow an employer or compensation insurer to recover compensation benefits paid by them from a fellow servant of the injured employee.

A number of other states have reached the same conclusion and construed their Workmen’s Compensation Acts as a bar to a negligence action by a covered employee seeking damages for the same injuries against a coemployee. Those decisions generally hold that such suits would destroy the purposes of workmen’s compensation.

For example, in Madison v. Pierce, 478 P.2d 860 (Mont.1970) an injured employee received a compensation award and then sued three officers and the foreman of her corporate employer. The Montana Compensation Act reserved the injured employee’s right to sue: “Some persons or corporations other than his employer.” The defendants filed a motion for a summary judgment asserting that the compensation act provided the exclusive remedy for the injured employee. The trial court sustained the motion for summary judgment and the Montana Supreme Court in affirming, stated:

The specific question before us is whether section 92-204 granting immunity from common law or statutory negligence actions by the injured employee to ‘persons or corporations other than his employer’ grants such immunity to coem-ployees of the injured workman.
The language of the Montana Act does not expressly specify whether coemploy-ees are included or excluded from immunity from negligence actions by the injured employee. To determine the intent of the legislature in this regard, we must look to the purposes of the Act and its provisions for the accomplishment of such purposes.
The broad purpose of the Montana Workmen’s Compensation Act is to substitute a system for the payment of medical costs and wage losses to injured employees without regard to fault, for the common law system of legal action by the injured employee against the one whose negligence proximately caused his injury. The principle behind this legislation was that the business enterprise or industry should directly bear the costs of injury to its employees in the same manner as the enterprise has always borne the costs of maintaining and repairing its plant, machinery and equipment. The business enterprise should pass along the costs of maintenance and repair of its human resources, its employees, in the same manner as is done in the case of other production costs, namely in the price at which its product is sold to the public. This underlying purpose finds summary expression in the familiar phrase ‘the cost of the product should bear the blood of the workman.’
The foregoing purposes and structure of the Montana Workmen’s Compensation Act demonstrate its foundation of enterprise liability for injury to its employees, paid directly by the employer in the first instance and ultimately passed on to the public in the price of its product. To permit an injured employee to collect compensation for injury from his employer under the Act and additionally sue a negligent coemployee of the same enterprise for the same injury, with the employer recouping his compensation payments, destroys the purposes and structure of the entire Act. We do not believe the legislature intended such result.
If section 92-204 were construed to withhold immunity to a coemployee from a negligence action, the cost of injury to an employee of the business would be shifted from the employer, where the Act places it, to a fellow employee, where the Act does not place it. It also would defeat the ultimate payment of injury cost by the public purchasing the product. This result would follow if section 92-204 were interpreted as urged by plaintiff because of the suit rights, subrogation rights, and lien rights granted the employer by this section. We cannot believe the legislature intended to permit the ultimate costs of employee injury to be borne by fellow employees, whether negligent or not. It would be a sad spectacle, indeed, for a workman to find his home taken and his future earnings subjected to payment of a judgment in such a suit; nor did the legislature intend to permit any such action.
The purposes and provisions of the Act can be fully effectuated by permitting negligence actions, in addition to compensation, only against strangers to the business enterprise. There is no reason why negligent strangers to the business should not pay the cost of injury to employees of the enterprise. The suit rights, subrogation rights, and lien rights granted to the employer under the Act, together with the compensation rights and suit rights granted the employee, permit ultimate collection of injury costs from a negligent stranger to the business enterprise. The Act does not cover strangers, only employees. There is no substitution of rights under the Act for common law remedies as between strangers on the one hand and employers and employees of the business on the other. (478 P.2d at 862, 863 and 864).

In Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6 (1952) the North Carolina Supreme Court stated:

[T]he provision in G.S. § 97-10 which gives the injured employee or his personal representative ‘a right to recover damages for such injury, loss of service, or death from any person other than the employer,’ means any other person or party who is a stranger to the employment but whose negligence contributed to the injury. And we further hold that such provision does not authorize the injured employee to maintain an action at common law against those conducting the business of the employer whose negligence caused the injury. To hold otherwise would, in a large measure, defeat the very purposes for which our Workmen’s Compensation Act was enacted. Instead of transferring from the worker to the industry, or business in which he is employed, and ultimately to the consuming public, a greater proportion of the economic loss due to accidents sustained by him arising out of and in the course of his employment, we would, under the provisions for subrogation contained in our Workmen’s Compensation Act, G.S. § 97-10, transfer this burden to those conducting the business of the employer to the extent of their solvency. The legislature never intended that officers, agents, and employees conducting the business of the employer, should so underwrite this economic loss. (69 S.E.2d at 9, 10).

Other cases could be cited to the same effect, but the two quoted above fortify our holding that the Mississippi Workmen’s Compensation Act should be construed to bar a suit by an injured employee against a fellow servant when the plaintiff is covered by the Act.

Plaintiff contends her suit is maintainable under section 71-3-71 Mississippi Code Annotated (1972) which provides in part the following:

The acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death .

It is argued that the terms of a statute must be given their common meaning, and a statute which is in derogation of the common law must be strictly construed, and must not be extended beyond what is clearly indicated by its express terms or by necessary implication. A similar argument was advanced in Madison v. Pierce, supra, and disposed of in the following language:

Plaintiff’s third argument is that the Workmen’s Compensation Act, being in derogation of common law, should be strictly construed to permit plaintiff’s suit in the instant case. We accept the rule that statutes eliminating common law rights should be strictly construed. But where, as here, common law rights cannot be preserved within the structure of the statutory Workmen’s Compensation Act and the purpose of such Act cannot be fulfilled without their elimination, it is apparent that the legislature eliminated such common law rights by implication, if not by express language. Our Act and the common law right to sue a fellow employee cannot coexist, so the latter must give way. (478 P.2d at 865).

We agree that the terms of a statute must be given their common meaning; however, we must recognize that the Workmen’s Compensation Act is an entirely new system replacing the fault based system of tort with the no-fault system of enterprise liability. From a practical standpoint, the uncertainty of an injured employee being fully compensated by a jury verdict based on a tort action alleging negligence against his employer is replaced by the certainty of recovery in a fixed sum, although the fixed sum may be less than his actual injuries and may be less than an amount that might be fixed by a jury.

We should no longer cling to the concept that a statute in derogation of common law must be interpreted strictly. Dean Roscoe Pound, one of the legal giants of this century, addressed this concept in his monumental work, Jurisprudence, as follows:

Another feature of this common-law notion of a sharp division between the traditional element and the imperative element whereby, as it were, the imperative element is regarded as an intruder in the body of the law, is a doctrine of strict construction of statutes in derogation of the traditional element. It is said commonly that three classes of statutes are to be construed strictly, namely: (1) penal statutes; (2) statutes in derogation of common right; and (3) statutes in derogation of the common law. It may be doubted if there is much justification today for any of these three categories. It would seem that with respect to all legislation the construction ought to be liberal with a view to ascertaining and giving effect to the purpose of the legislative provision. But there is more justification for some of these categories than for others. With respect to the doctrine that penal statutes are to be construed strictly it may at least be remarked that political liberty requires clear and exact definition of the offense which is to be visited with loss or impairment of life, liberty, or property. In the same way, the rule as to statutes in derogation of common right has some excuse in England where there are no constitutional restrictions on legislation. It really is but a way of saying that interpretations which involve mischievous consequences are to be avoided. In the United States it means that interpretations which would make an act unconstitutional are to be avoided. Whenever it is applied beyond these limits it is without excuse and is only an incident of the historical attitude of the common-law courts toward legislation. The proposition that statutes in derogation of the common law are to be construed strictly has no analytical or philosophical justification. It assumes that legislation is something to be deprecated. As no statute of any consequence dealing with any relation of private law, unless declaratory, can be anything but in derogation of the common law, under this doctrine the social worker and the legal reformer must always face the situation that the legislative act which represents the fruit of their labors will find no sympathy in those who apply it, will be construed narrowly, and will be made to achieve as little as possible. Yet the doctrine has been extolled as a fundamental principle of jurisprudence by those American writers who adhered to Savigny’s views as to the futility of legislation. [Vol. 3, R. Pound, Jurisprudence, § 111, at 663-665 (1959)].

We agree with the views expressed by Dean Pound quoted above. To do otherwise relegates statutes to a secondary status, a position we no longer accept. Dean Pound suggested four ways in which courts might deal with a legislative innovation:

Pour ways may be conceived of in which courts in such a legal system as ours might deal with a legislative innovation. (1) They might receive it fully into the body of the law as affording not only a rule to be applied but a principle from which to reason, and hold it, as a later and more direct expression of the general will, of superior authority to judge-made rules on the same general subject; and so reason from it by analogy in preference to them. (2) They might receive it fully into the body of the law to be reasoned from by analogy the same as any other rule of law, regarding it, however, as of equal or co-ordinate authority in this respect with judge-made rules upon the same general subject. (3) They might refuse to receive it fully into the body of the law and give effect to it directly only; refusing to reason from it by analogy but giving it, nevertheless, a liberal interpretation to cover the whole field it was intended to cover. (4) They might not only refuse to reason from it by analogy and apply it directly only, but also give to it a strict and narrow interpretation, holding it down rigidly to those eases which it covers expressly. The fourth hypothesis represents the orthodox common law attitude toward legislative innovations. Probably the third hypothesis, however, represents more nearly the attitude toward which we are tending. The second and first hypotheses doubtless appeal to the common law lawyer as absurd. He can hardly conceive that a rule of statutory origin may be treated as a permanent part of the general body of the law. But it is submitted that the course of legal development upon which we have entered already must lead us to adopt the method of the second and eventually the method of the first hypothesis. [21 Harv. L.Rev. 385, 386 (1908)].

The suggestion made by Dean Pound seventy years ago with respect to the construction of legislative acts was the practice in this state many years before Dean Pound wrote on the subject. An example of this is our treatment of the statute commonly referred to as the “woman’s law” which was first enacted February 15,1839 and amended February 28, 1946. Chapter 34, Articles 4 and 7, Hutchinson’s Mississippi Code. Clarke v. McCreary, 20 Miss. 347 (1849) involved the title to slaves who came into the possession of the wife of McCreary in September, 1839 after the “woman’s law” went into operation in April, 1839. The question was whether property inured to the separate use of Mrs. McCreary or whether title to the slaves vested absolutely in Mr. McCreary under the common law; or descended in accord with the statute. In determining this question, the Court held that the common-law right of a husband to the personal property of his wife was changed by the act. The Court stated:

By the common law, marriage operated as an absolute gift to the husband of all the personal chattels of the wife, which were in her possession at the time. With respect to such part of her personalty as is not in her possession, as debts due to the wife, and all that class of chattels denominated choses in action, these were a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture; for if he die in the lifetime of his wife without reducing such property into possession, she, and not his representatives will be entitled to it. But if he survive her, then he, as her administrator, will be entitled to all her personal estate, which continued in action or unrecovered at her death. Co.Lit. 351 a, also note, 304; Clancy, Husb. & Wife, 4; Roper, 204. These principles are very plain and familiar, and, apart from the statute, would give the slaves to the husband. (20 Miss, at 352).

The same statute was considered in Olive, Admr. v. Walton, 33 Miss. 103 (1857) where the Court stated:

In considering this question, we must look to the true spirit and object of the statute, and construe its language with reference to the policy indicated by it. Before the passage of the Act, a married woman was incapable of holding to her separate use, property conveyed directly to her, in her own name. The primary object of the statute was doubtless to remove that incapacity, and to secure to her separate use all property which she might acquire, except the same should come from her husband; and hence provision, in the first place, is made, enabling her to take by direct conveyance to her. But this is only a mode of accomplishing the end intended, the policy being to secure to the wife a complete title to all such property as might be acquired by her, to her sole and separate use, for the benefit of herself and her children. This was a new policy in our laws, founded upon enlarged views of protection and justice to the rights of a class of society entitled to the most liberal protection. It was the substantial right, which the legislature intended to secure, rather than to prescribe a form, as necessary to be complied with, in order to the enjoyment of the right; and therefore, the spirit of the statute is to secure to the benefit of the wife and her children, all property which may thereafter be conveyed to her separate use and benefit, without regard to the form of the conveyance. (33 Miss. at 114).

There are other cases construing the “woman’s law” but the two cited are sufficient examples of the principle that this Court received the statute into .the body of the law, not only as a rule to be applied, but as a principle from which to reason, and that common law on the same subject must give way to statutes.

A more recent example of the operation of this principle of receiving a statute into the body of the law is our recognition of the right of a wife to recover for loss of consortium caused through negligent injury to her husband by a third party. In Tribble v. Gregory, 288 So.2d 13 (Miss.1974), we stated:

For many years Mississippi held to the majority rule that a wife did not have a cause of action for loss of consortium caused through negligent injury of her husband by a third party. Nash v. Mobile & O. R. Co., 149 Miss. 823, 116 So. 100 (1928); Simpson v. Poindexter, 241 Miss. 854, 133 So.2d 286 (1961), suggestion of error overruled 241 Miss. 862, 134 So.2d 445. A husband, however, did have such a cause of action with respect to negligent injuries to his wife. Brahan v. Meridian Light & Ry. Co., 121 Miss. 269, 83 So. 467 (1919); Palmer v. Clarksdale Hospital, 213 Miss. 611, 57 So.2d 476 (1952). In 1968 Miss.Code Ann. § 93-3-1 (1972) was amended authorizing an action by a wife for loss of consortium because of negligent injuries to her husband, by adding the following sentence:
A married woman shall have a cause of action for loss of consortium through negligent injury of her husband.
This is the first case to be decided by this Court under the amendment; therefore, it is necessary to define the scope and limitation of damages recoverable in an action under the statute. (288 So.2d at 16).

Other cases involving this principle are found in our law but our treatment of the “woman’s law” and the wife’s right to consortium serve as sufficient examples of the principle that throughout the history of this state we have received statutes into the body of the law both as a rule to be applied and as a principle from which to reason. Dean Pound’s suggestion was not innovative so far as Mississippi is concerned because we have consistently applied this principle in construing statutes in derogation of the common law.

Our Workmen’s Compensation Act in its entire concept is a departure from the common law. It represents long and patient study by experts, careful consideration by conferences, discussions in periodicals and in the press, and intelligently conducted hearings before legislative committees. The result was a carefully drafted Act which substituted a no-fault compensation system to replace the common law action by employees against employers. We have repeatedly held that any construction given the Act should be sensible and liberal with the view of carrying out the purposes of the Act. We should not focus the microscope of judicial analysis on a few words in the entire Act, and in the process erode the overriding purpose of the Act. Our Act and the common law right to sue a fellow employee for negligence, as opposed to an intentional tort, cannot coexist, so the common law right to sue a fellow employee where the injured employee is covered by the Act must give way.

The final issue with which we are faced concerns the correctness of the trial court’s order overruling the demurrers by Bechtel Power Corporation and The Travelers Insurance Company to the declaration which named them as defendants and which stated that pursuant to section 71-3-71 Mississippi Code Annotated (1972) they were . . required to assert such, if any, claims which they may have in the premises.” In its order overruling the demurrers and motions to dismiss the declaration, the trial court gave Bechtel and The Travelers thirty days either, to intervene, or disclaim any interest in the lawsuit.

The demurrers and motions to dismiss as to Bechtel and Travelers should have been sustained. Bechtel, as the employer, was not subject to suit [section 71-3-9 Mississippi Code Annotated (1972)]; and the declaration did not state a cause of action against Travelers but only stated that Travelers was required to assert any claim which it might have.

Bechtel and Travelers correctly argue that section 71-3-71 Mississippi Code Annotated (1972), which establishes the right of intervention, makes intervention optional and does not require that the right be exercised at any particular time. Cf. McDonald v. E. J. Lavino Co., 430 F.2d 1065 (5th Cir. 1970); Litton Systems, Inc. v. Mur-phree, 301 So.2d 850 (Miss.1974); Powe v. Jackson, 236 Miss. 11, 109 So.2d 546 (1959). Therefore, it was improper for the lower court to set a time limit of thirty days on the right of these appellants to intervene.

AFFIRMED ON APPEAL OF PLAINTIFF, MRS. HELEN L. McCLUSKEY, IN NO. 50,002; REVERSED ON APPEAL OF DEFENDANTS BECHTEL AND TRAVELERS, IN NO. 50,011, AND RENDERED.

ALL JUSTICES CONCUR.

      . Section 71-3-71 Mississippi Code Annotated (1972) provides in part as follows:
      An employer or compensation insurer who shall have paid compensation benefits under this chapter for the injury or death of the employee shall have the right to maintain an action at law against any other party responsible for such injury or death, in the name of such injured employee or his beneficiaries, or in the name of such employer or insurer, or any or all of them.


source: Caselaw Access Project

license: Public Domain

text:
    A. GERODETTI and A. Gerodetti, Jr. d/b/a Gerodetti Construction Company and Select Insurance Company, a corporation, v. BROADACRES, INC., a corporation.
    No. 50353.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Rehearing Denied Nov. 1, 1978.

      Gray, Montague, Jackson & Pittman, James C. Pittman, Jr., Hattiesburg, for appellants.
    Aultman, Pope, Aultman & Tyner, Bruce C. Aultman, Hattiesburg, for appellee.
    Before ROBERTSON, P. J., and SUGG and BROOM, JJ.
   SUGG, Justice, for the Court:

Broadacres, Inc. filed suit against A. Ger-odetti and A. Gerodetti, Jr., doing business as Gerodetti Construction Company and Select Insurance Company, surety for the Ger-odettis, seeking specific performance of a contract to construct two buildings charging defective and incomplete performance by the defendants. On motion of the defendants the cause was transferred to the Circuit Court of Forrest County whereupon plaintiffs filed their declaration for actual damages in the amount of $337,206.45 and punitive damages in the amount of $400,-000. Plaintiffs charged that defendants failed to follow plans and specifications prepared by its architect. The jury returned a verdict for $112,110 for actual damages but did not find defendants were liable for punitive damages.

The defendants admitted certain errors and omissions in the construction of the two buildings but contended: (1) they were not willful, but inadvertently made; (2) departure from the original plans and specifications was made with the full knowledge and consent of R. M. Gillespie, the principal stockholder and President of Broadacres, Inc. and that the buildings were accepted by plaintiff without requiring literal or exact compliance with the contract; and (3) certain defects arose despite compliance with plans and specifications.

Defendants also filed a cross-bill claiming that plaintiff owed them a balance of the contract price in the amount of $7,155.17, and interest on progress payments not made on the dates required by the contract.

We reverse because the jury was not properly instructed and for that reason only a brief statement of the facts will be made. Plaintiff entered into lease agreements to provide buildings for Woolco and Del-champs stores to be located in a shopping center to be built by it. The buildings were to be delivered for occupancy to Delchamps on April 1, 1971 and to Woolco on May 30, 1971. In January, 1971 plaintiff entered into a contract with the defendants for the construction of the two buildings for $758,-000 with delivery dates corresponding to the requirements of the leases to Woolco and Delchamps. The buildings were constructed, accepted by plaintiff and, in due course, made available to and were occupied by Woolco and Delchamps within the time required by the leases.

The principal contention of defendants on this appeal is that the court erred in giving the following instruction:

The Court instructs the Jury that the Defendant, Gerodetti, did not fulfill his contract with Broadacres, Inc., to construct the Woolco and Delchamps buildings according to plans and specifications.
The Court further instructs the Jury that your verdict should be in favor of the Plaintiff and that you should award to the Plaintiff such damages as you find have been proven to you by a preponderance of the evidence were proximately caused by the failure of said Defendant to construct said buildings according to plans and specifications.

Defendants objected to the instruction because the first paragraph is a peremptory instruction telling the jury that defendants did not fulfill their contract with plaintiff. We are of the opinion that this part of the instruction was properly given because defendants admitted they did not build the buildings in accordance with the plans and specifications.

Defendants objected to the second paragraph of the instruction because it furnished no guide to the jury to be used in awarding damages. We agree with this contention. We have held many times that instructions on damages must furnish the jury with a guide to be used in awarding damages. In Dickerson Const. Co., Inc. v. Process Eng., 341 So.2d 646 (Miss.1977) plaintiffs secured an instruction on damages which authorized the jury to take into consideration: “all damages, if any, which will be caused as a result of business interruption during permanent repairs made to the building.” We reversed and remanded for retrial on the issue of damages only because the instruction did not furnish a guide to the jury to be used in awarding damages. See also, Copiah Dairies, Inc. v. Addkison, 247 Miss. 327, 153 So.2d 689 (1963); Ala. Great Sou. R.R. v. Broach, 238 Miss. 618, 119 So.2d 923 (1960); Sears Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250 (1945), and cases cited in these three cases.

Plaintiff defends the instruction with the argument that, when all of the instructions are considered as a whole, the jury was properly instructed. This argument is based on a long line of cases to this effect. Dorroh v. Cotten, 259 So.2d 121 (Miss.1972); Phillips v. Dow Chemical Co., 247 Miss. 293, 151 So.2d 199 (1963); Scoggins v. Vicksburg Hospital, Inc., 229 Miss. 770, 91 So.2d 837 (1957).

Plaintiff argues that the following instructions for the defendants, when considered with the above quoted instruction, properly instructed the jury on the elements of damages allowable in this case.

The Court instructs the Jury that defendants are not liable to plaintiff for any imperfections, defects or damages if the same were caused by or resulted from the architect’s design of said structures.
The Court instructs the Jury that defendants are not liable to plaintiff for roof leaks, deterioration in wood and other materials, or other water damage if you believe from a preponderance of the evidence that the water leakage resulted from the expansion and contraction of the metal expansion joints and metal flashings, and that said expansion joints and flashings were designed and specified by the architect, and that defendants, acting through their subcontractor, Malone Roofing Company, installed the expansion joints and flashings in accordance with the plans and specifications.

The instructions, considered as a whole, do not properly advise the jury of the elements of damages that may be considered in this case. Where a building is completed, substantially according to plans and specifications, the measure of damages may be determined by: (1) the cost rule which is the cost of repairing the defects to make the building or structure conform to the specifications where such may be done at a reasonable expense if unreasonable economic waste is not involved, or (2) the diminished value rule which is the difference in the value of the property with the defective work and what the value would have been if there had been strict compliance with the contract. The diminished value rule applies where the defects cannot be remedied without great sacrifice of work or material or would impair the building, or would involve unreasonable economic waste, or where the defects cannot be repaired at a reasonable cost, or where it is not reasonable or practicable to remedy the defects, or where the cost of remedying the defects will not fully compensate the owner for damages suffered by him. 25 C.J.S. Damages § 76, pp. 859-864 (1966); 76 A.L.R.2d 792 (1961).

In Bevis Construction Company v. Kittrell, 243 Miss. 549, 139 So.2d 375 (1962) we addressed the question of the measure of damages involving substantial compliance of a building contract and held:

The chancery court should have awarded damages to appellees for the failure of the Bevis Construction Company to carry out its agreement with them in a sum sufficient to furnish the construction of the building; or a sum sufficient to bring the building up to the specifications of the contract and agreement between the parties, together with such other damages due them as was shown to have grown directly out of the failure of the Bevis Construction Company to carry out its contract and understanding.
The testimony on behalf of appellees shows that it will require $1,000 for necessary materials and carpentry to complete the house. It was further shown that it will cost $75 to correct the wiring and $35 to correct the hot water vent in the house. In our opinion the painting of the surface of the sills and floor joists with creosote paint, even if they had been completed, did not satisfy the specifications of the contract. The sills and floor joists should have been impregnated with creosote oil. Webster’s 3rd New International Dictionary defines the verb ‘creosote’ as follows: ‘To impregnate (wood) with creosote oil.’ It will therefore be necessary for the Chancellor to determine on a new trial how much damages should be awarded appellees because of the failure of appellant to comply with the building contract with reference to creosoted sills and floor joists. (139 So.2d at 380).

Although Bevis did not specifically mention the diminished value rule, damages for substituting painted sills and floor joists for creosoted sills and floor joists would be measured by this rule. Bevis allowed as damages cost of completion, costs of remedying defects, and diminished value, and is therefore authority for applying the “cost” rule to some defects and the “diminished value rule” to others.

Plaintiff charges numerous defects, some of which were remedied by the plaintiff at a reasonable cost, some of which were remedied by the defendant and some of which cannot be remedied without great economic waste.

We are of the opinion that, because of the nature of defects involved, on retrial the cost rule may be applied to some and the diminished value rule to others. We do not undertake to advise the trial court specifically which rule to apply to particular defects because we do not know what the evidence will show on retrial.

This will not prevent defendants from obtaining an instruction that damages for any defect resulting from the architect’s design of the buildings are not recoverable, and that plaintiff may not recover for any defects resulting from any alteration from the original plans and specifications where such change was acquiesced in, and the finished work accepted by the plaintiff, if there is evidence of these factors at the new trial. Defendant will also be entitled to the instruction granted at the first trial pertaining to the duty of plaintiff to minimize its damages.

It is admitted by all the parties that plaintiff has retained $7,155.17 due defendants according to the terms of the contract. It is also admitted that defendant is entitled to a credit for interest from plaintiff at the rate of 6% per annum on $172,777.50 from March 10, 1971 to April 10, 1971 and on $486,900 from April 10, 1971 to April 22, 1971 to cover payments not made when due by the terms of the contract of the parties. Any damages found by the jury on retrial will be diminished by these sums.

The jury did not award punitive damages, plaintiff did not file a cross-appeal on this question; therefore, damages on retrial will be limited to compensatory damages only.

REVERSED AND REMANDED.

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

      . Our discussion of damages in this case is limited to the “cost” rule and the “diminished value rule” and does not include other damages which might accrue as a result of failure of a builder to construct a building in substantial compliance with his contract.


text:
    GENERAL MOTORS CORPORATION v. BOARD OF TRUSTEES OF WAYNE GENERAL HOSPITAL
    No. 50417.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Rehearing Denied Nov. 1, 1978.
    Heidelberg, Sutherland & McKenzie, D. Gary Sutherland, Hattiesburg, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, Kenneth E. Bullock, Laurel, for appellee.
    Before ROBERTSON, P. J., and SUGG and BROOM, JJ.
    PATTERSON, C. J., SMITH, P. J., and WALKER, LEE, BOWLING and COFER, JJ., concur.
   Appeal from Circuit Court, Wayne County; Lester F. Williamson, Judge.

Affirmed.


author: PATTERSON, Chief Justice,

text:
    Mary Joy KING v. STATE of Mississippi.
    No. 50632.
    Supreme Court of Mississippi.
    Sept. 27, 1978.
    As Corrected on Denial of Rehearing Nov. 1, 1978.

      Sullivan, Smith, Hunt & Vickery, Ralph E. Chapman, Charles L. Sullivan, Clarks-dale, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, WALKER and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Mary Joy King appeals from a conviction of murder and sentence to life imprisonment by the Circuit Court of Clay County.

Mary Joy was the wife of Bruce King, Jr., and resided with him and their three children in the city of Oxford. On the night of November 30,1976, Bruce King, Jr. was shot and killed in his residence. Mary Joy King, Bess Beane, Martha Sue Elmer, Richard Romanus and Frederick Williams were indicted for the murder. The appellant’s trial was removed from Lafayette to Clay County on motion for a change of venue. By the time this trial began, Martha Sue Elmer had been convicted of the murder, Bess Beane had pled guilty to it, with sentence deferred in each case, and neither Richard Romanus nor Frederick Williams had been tried.

The evidence for the state informs of a conspiracy among the indictees to kill King. Some detail is necessary to the evaluation of the errors assigned.

Elmer testified that she had been acquainted with Mary Joy King for several years and visited with her daily for part of this time. Beginning about two years previously the appellant expressed dissatisfaction with her husband and asked her assistance in finding someone to kill him. In explanation, the appellant told her that she could not receive adequate financial settlement through a divorce to support herself and the children. Thereafter they frequently discussed the suggested crime.

Subsequently Elmer contacted Richard Romanus and accompanied him on an automobile trip to New York from which they returned with Frederick (Fritz) Williams. Later, November 1976, she met with the appellant and Romanus in Shirley Jolley’s mobile home where the plans to kill King were discussed. When Romanus offered to commit the crime, the appellant devised a scheme whereby Romanus would call King, who operated a Firestone store, and tell him that his car battery had failed and when he came to the store to supply a new battery, Romanus would shoot him. Elmer provided Romanus with a gun for this purpose and he and Williams drove to Oxford on November 29 and called King in furtherance of their objective. The plan failed because King would not leave his residence to assist in obtaining a new battery.

The following day Elmer and Bess Beane, who were sisters, had lunch with the appellant and plotted for the slaying to be that night. The appellant proposed, according to Elmer, corroborated by Beane, and it was agreed that appellant would attend a ball game that evening with her children, but would make certain the garage door of her home was left unlocked. Frederick Williams would then enter the residence through the unlocked door where he would await his victim, who was also to attend the ball game but in another vehicle. The plan progressed as proposed, according to Elmer. Beane drove Williams to the King residence, departed and shortly returned for him, ultimately leaving Williams in a bus station in an adjacent city.

On cross-examination, Elmer testified concerning the possibility of her receiving a lighter sentence as suggested by her attorney, Mr. Pagels, of Memphis, Tennessee.

Q. I believe he is the one represented you in the trial at Oxford?
A. Yes, sir.
Q. Did you discuss anything with him concerning what sentence might be imposed upon you in return for your testimony?
A. He, he suggested that the State might recommend a lesser sentence, maybe 20 years.
Q. Did he also tell you that was not binding on the Court?
A. Yes sir.

Elmer admitted she was lying in her previous testimony wherein she stated that Mrs. King had not met Romanus.

Romanus gave evidence for the state. He corroborated Elmer’s testimony that they had gone to New York and returned with Frederick Williams. He knew Mary Joy King, having met her the second week in November in Shirley Jolley’s trailer in Southaven, Mississippi. He responded to questions about their relationship as follows:

Q. What did she tell you?
A. She told me that she could trust me, she was under the understanding that she could trust me, and that she had a plan or layout to kill Mr. King, Bruce King, and that she gave me the whole planned layout as to what was to take place to make it look like a robbery.
Q. What did she give you, sir?
A. Well, on the back of a piece of paper she sketched out the garage that Mr. King owned and told me to go to Oxford and pose as a student, roughly around seven at night or 7:30 and call him and tell him that my battery had gone in my car, and that he would open the station up and he would drive a pickup truck, to follow him through the office, through the garage area into a little office where there was a desk and into the battery room and that’s where to shoot him.
* * sfs ^ * *

And:

A. Fritz Williams and myself drove to Mrs. Shirley Jolley’s trailer in Southaven and picked up a Chevy, I don’t know whose car it was, a Chevy that was there with the gun under the seat and a note, and we drove to just outside Oxford, Mississippi, it was roughly around 7:00 o’clock, and called Mr. King, spoke with him, got back in the car, drove to another pay phone and called Mrs. Beane in Sou-thaven, and told her that Mr. King wouldn’t come out, and drove back to Memphis.

On cross-examination, Romanus acknowledged that he had testified in Elmer’s trial but he did not make the statements appertaining to Mrs. King as in this trial. When asked about immunity, he responded:

Q. And in addition to that you have entered into some agreements or made some what we call deal as to what’s going to happen to you, isn’t that correct?
A. I have made no deal, sir.
Q. You have not had any understanding of any nature whatsoever as to what we may expect to be the ultimate to happen to you?
A. No, I haven’t sir.
Q. That has not occurred?
A. No, it has not.
Q. Has it been discussed?
A. No, it has not.
Q. Has it been discussed to your knowledge by your attorney?
A. Possibly.
Q. Do you know what conclusions your attorney may have reached in your behalf?
A. No, I do not, just what he has told me.

By his testimony, Romanus participated in the murder conspiracy because the appellant told him he would be taken care of after she got the insurance money.

Bess Beane was offered as a state’s witness. She acknowledged pleading guilty to the murder of Bruce King, Jr. but maintained she remained a friend of the appellant. She testified the appellant wanted her husband killed because she detested him and a divorce would not leave enough to support her and the children. She related the attempt of Romanus and Williams to kill Bruce King the night of November 29 and the plans discussed at lunch the following day. In the accomplishment of this she drove Frederick Williams to the King’s residence on the night of November 30 and departed for some thirty minutes before returning. When she did so, Williams was waiting outside of the house with the weapon and a money bag. She then drove him to her home in Tupelo where the weapon was left and to the bus station where he departed with the money.

When asked whether the state might make a recommendation in her behalf for her testimony, she responded, “Well, my attorney said that it might be 20 years.” On cross-examination, after testifying the state had not offered any recommendation for her, she elaborated as follows:

Q. And it’s also a fact that you were lead (sic) to believe that a 20 year sentence may be imposed and that you would perhaps only have to serve three or four years and would get to go home on weekends, perhaps on leaves; isn’t that a fact?
A. Well, my attorney said something to this effect; but the state has never.
Q. I understand that. You told Mr. Coleman the state never made you an agreement and this is still your testimony?
A. Yes sir.
* * * * * *
Q. But Mr. Pagels lead (sic) you to believe if you cooperated as a matter of fact, more precisely, if you helped to make a case against Mrs. King you might be out in three and a half or four years?
A. No, sir.
Q. Was the figure three and a half or four years?
A. When Mr. Pagels said, he said I think you would be better off to cooperate with the state because you are going to be convicted anyway.
* * * * * *
Q. But again, could we get back to you might be able to work it out on three and a half or four years?
A. He said maybe five years.
Q. And that you would probably get to go home on weekends or leaves?
A. Yes, sir.
******
Q. Now, if you want to explain something to me; certainly you are free to do so.
A. Okay, if I have to down there and spend 100 years, my conscience will be clear; and this is what I have to live with.

The state rested its case after other testimony, but it is apparent these three witnesses were the prime source of evidence for the prosecution.

A pretrial motion for disclosure was filed on behalf of the appellant on May 4, 1977. It sought “all concessions, promises, statements, capitulations, allowances and/or proposals made by the State to any and all co-indictees of the Defendant in return for pleas of guilty by any and all such co-indict-ees, and/or in return for testimony in this case by any and all such co-indictees.” This motion was called to the court’s attention prior to trial after the ease had been removed to Clay County. After argument, the motion was overruled without prejudice, the court stating, “It is the Court’s opinion that the matters sought to be discovered by the Defendant’s Motion would be useful for purposes of impeaching the credibility of a witness if there were, in fact, any promises or recommendations made.” Another motion for production of all statements of Bess Beane, Martha Sue Elmer and Richard Romanus was filed on May 18 which does not appear to have been ruled upon by the court, but it was renewed with the addition, “for disclosure of any promise of immunity, of special consideration or other inducement made by any person for and on behalf of the State to Mr. Romanus, Mrs. Beane, Mrs. Elmer or any other person who will be called as a witness by the State,” and was again overruled without prejudice.

During the trial, when Romanus was offered as a witness by the state, the defendant moved, outside the presence of the jury, to exclude any testimony by the witness because it was believed he had been promised immunity by the state which had not been divulged to the defendant although requested. Once again the objection was overruled without prejudice. A similar motion was made to the testimony of Martha Sue Elmer and it was also overruled. And, finally, when the state rested, the defendant again moved to exclude the testimony upon the same basis with a similar result.

Mrs. King testified in her own behalf. She denied participating in a conspiracy to kill her husband. She stated that she attended a ball game on the evening of November 30 accompanied by her son and a younger daughter, a team member, who remained for another game. When she and her son returned to the residence, they found the body of Mr. King lying in a pool of blood in the den of their home. The son gave testimony that he had made certain the doors to the residence were locked before accompanying his mother to the game "and, moreover, she had not insisted that he attend the game but rather inquired if he wanted to go. He also testified that his mother seemed irritated when his father did not appear for the game.

The jury returned a guilty verdict and afterward the trial judge called the attorneys into chambers and announced:

The Court makes this statement for the record that at the conclusion of the testimony of Rick Romanus in this case, the Court had intended to make a statement into the record as to a matter within the Court’s knowledge and for the purpose of really protecting the integrity of the Court. At the conclusion of Mr. Roma-nus’s testimony the Court did ask if the witness could be finally excused and the exact wording by Mr. Sullivan and Mr. Chapman I do not remember, but the indication was and the statement in the record was to the effect that he might be recalled as a witness, and the Court frankly overlooked calling you in here before the case went to the jury, but it would not really in the Court’s opinion make any difference. I simply wanted to make this statement for the record, that the Court is aware of immunity being granted to Rick Romanus in this case and the reason that the Court did not divulge this is simply the Court’s interpretation and opinion of the law pertaining awards of immunity or promises of awards to codefendants or coindictees and that such simply goes to the credibility of the witness to be brought out by cross examination. I have discussed this with the senior judge who was here in the Courtroom most of the two days of this trial and as I interpret the law it’s my decision, but I am simply telling you this to protect the integrity of the Court, but I believe the law was that I was not required to divulge it, that it was the subject of cross examination only and that concludes what I have for the record, gentlemen.
# Sfc * !j« ‡
At the request of Mr. Coleman, I will add one statement to that record that at all times that I have conferred with Mr. Romanus’s attorney, Mr. Louis Brindisi of Utica, New York, Mr. Brindisi maintained to the Court that he was not going to communicate this grant of immunity to the Defendant and that Mr. Grady Tollison of the Oxford Bar who the Court has talked to as recently as this afternoon, has informed the Court that he has never informed the Defendant Romanus of that fact and that concludes what I have for the record, gentlemen.

A motion for a new trial was filed and heard. It was established that Romanus had been granted immunity several months before this trial with the concurrence of the trial judge and that the attorneys who participated in the immunity negotiations were directed by the judge not to disclose such fact. It also reveals the sentences of Elmer and Beane, deferred at the time they testified, were later imposed with each receiving twenty-five years in the penitentiary rather than life imprisonment which is mandated by Mississippi Code Annotated section 97-3-21 (Supp.1977), for murder convictions.

Although several assignments of error are urged for reversal, in our opinion, we need address only one because it is controlling and the others are not likely to recur. This assignment is:

The Court erred in permitting the jury to be led to believe that the defendant Romanus was then under a prosecutable indictment and that he would in fact, be prosecuted, when this was known by the Court and the State to be untrue and incorrect, as said witness had been granted immunity.

Initially, we state that nothing herein should be construed as comment on the guilt or innocence of this appellant. We speak only to her constitutional right to due process of law — a fair trial in accord with basic concepts of justice. In our opinion we must reverse because the appellant was not accorded a fair trial commensurate with the constitutional standards of this state or the United States.

The testimony of Romanus, whether true or untrue, was purchased by a grant of immunity, specifically, freedom from life imprisonment. We, of course, do not know what effect the grant of freedom had upon his testimony, but the potential of its affecting the witness’s credibility is so great that it cannot be ignored. A jury always has great responsibility in resolving factual disputes and its responsibility in cases of this nature is awesome. It needs, and the courts must afford, every proper assistance to the jury in its search for the truth. Essential to this effort is knowledge of the inducements likely to affect the witness’s credibility so it may be considered by the jury in its deliberations.

The state contends, however, that the immunity, or knowledge of it, is newly-discovered evidence which comes within the criteria announced in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), namely, (1) the truth of the newly-discovered evidence, and (2) the probative effect of such evidence toward a different result on a new trial. We reject this argument because we do not think the knowledge of immunity can be categorized as newly-discovered evidence since it was within the knowledge of the trial judge and the state’s attorneys, and if it is presently to be considered newly discovered, it must be so because the previous motions to disclose had been improperly overruled and not due to lack of diligence by the appellant. Moreover, the truthfulness of Roma-nus’ testimony could not likely be ascertained, in our opinion, without consideration of the witness’s credibility. The importance of his testimony is obvious and it is also incriminating, but its effect, however material and relevant, could be instantly swept away if the jury believed it to be untrue, the product of purchase rather than material evidence honestly expressed.

A witness’s credibility is of such importance in our system of justice that all courts recognize the great need for, and grant, broad scope upon cross-examination, but even then at times, regardless of the skillfulness of the cross-examination, essential facts, regretfully, do not come to the jury’s attention. Presently, the court had knowledge of the immunity and in our opinion should have responded affirmatively to the motion to disclose rather than leave its discovery to the less certain standard of cross-examination.

It is also argued that the fact of immunity was not communicated to Roma-nus, but only to his attorneys and therefore his credibility was not affected. We are not persuaded because we do not think it likely the state’s attorney suggested immunity, dismissal of a murder indictment, unless the state needed the testimony for other convictions. Stated differently, if the testimony was forthcoming without immunity, there was no need to grant it; the quid pro quo was absent. Moreover, we are of the firm opinion that the knowledge of Romanus’ attorneys must be imputed to him under these circumstances because we think it incredible that he testify and incriminate himself as he did without objection and interposition of his Fifth Amendment right by his attorneys. We also observe that the trial judge, the district attorney, and Romanus’ attorneys all thought that he had been granted immunity.

Although we do not believe citation of authority is necessary for this opinion, it nevertheless may be found in nothing less than the United States Supreme Court. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), which is appended for the guidance of the bench and bar of the state. Compare Pittman v. State, 350 So.2d 67 (Miss.1977).

REVERSED AND REMANDED.

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

APPENDIX I

January 25, 1977

Mr. Louis Brindisi

Attorney at Law

747 Bleecker Street

Utica, N.Y. 13501

Re: State of Mississippi v. Romand J. Ro-manus a/k/a Richard Romanus, a/k/a Rick Romanus

Dear Mr. Brindisi:

The above named Defendant was indicted by the Lafayette County Grand Jury and charged with the crime of murder in that he on or about the 30th day of November, 1976, did willfully, unlawfully, feloniously and of his malice aforethought, kill and murder a human being, Bruce Belmont King, Jr. This indictment was filed and recorded on the 4th day of January, 1977 in the Clerk’s office of Lafayette County.

It is the understanding of the undersigned that discussions have been had between the attorneys representing the Defendant and with the local prosecuting attorneys, namely, Ken Coleman, District Attorney for the Third Judicial District and Glen Alderson, Lafayette County Attorney.

That these discussions resulted in an agreement whereby the Defendant is to completely cooperate with the prosecuting attorneys and will sign a statement outlining in detail his involvement and knowledge of the crime as alleged in the indictment.

The Defendant further will testify at any trial regarding such crime when requested to do so by the prosecuting attorney.

That the Prosecuting Attorneys will nolle prosequi the indictment against the defendant and will grant him immunity from prosecution for any crime which may arise as a result of the Defendant’s statement or his testimony.

That the Defendant shall fully cooperate with the prosecution in all hearings, trials, and other judicial proceedings regarding the murder of Bruce Belmont King, Jr. If at anytime it shall develop that Romanus was present at the King residence at the time of the murder of Bruce King, then in such event the indictment against Romanus will not be nolle prosequi and Romanus will not be granted immunity from prosecution. In the event that the above indictment is not dismissed for those reasons then any statement or evidence arising therefrom will not be used against him and will be entirely suppressed.

That the Circuit Court Judge for the Third Circuit Court District of Mississippi has been informed of the contents of this understanding between the parties and consents to this agreement.

Very truly yours,

KEN COLEMAN, DISTRICT ATTORNEY FOR THE THIRD JUDICIAL DISTRICT

Bv /s/ Charles W. Wright Asst. DA.

/s/ Glen Alderson

COUNTY ATTORNEY OF

LAFAYETTE COUNTY

/s/ Louis T. Brindisi

LOUIS T. BRINDISI

/s/ Gradv F. ToIIison. Jr.

GRADY F. TOLLISON, JR.

I hereby approve and consent to the above and direct that none of the parties to this agreement shall disclose the contents hereof until further order of the Court.

/s/ William R. Lamb CIRCUIT COURT JUDGE

APPENDIX II

Mr. Chief Justice Burger delivered the opinion of the Court.

Petitioner was convicted of passing forged money orders and sentenced to five years’ imprisonment. While appeal was pending in the Court of Appeals, defense counsel discovered new evidence indicating that the Government had failed to disclose an alleged promise made to its key witness that he would not be prosecuted if he testified for the Government. We granted cer-tiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The controversy in this case centers around the testimony of Robert Taliento, petitioner’s alleged coconspirator in the offense and the only witness linking petitioner with the crime. The Government’s evidence at trial showed that in June 1966 officials at the Manufacturers Hanover Trust Co., discovered that Taliento, as teller at the bank, had cashed several forged money orders. Upon questioning by FBI agents, he confessed supplying petitioner with one of the bank’s customer signature cards used by Giglio to forge $2,300 in money orders; Taliento then processed these money orders through the regular channels of the bank. Taliento related this story to the grand jury and petitioner was indicted; thereafter, he was named as a coconspirator with petitioner but was not indicted.

Trial commenced two years after indictment. Taliento testified, identifying petitioner as the instigator of the scheme. Defense counsel vigorously cross-examined, seeking to discredit his testimony by revealing possible agreements or arrangements for prosecutorial leniency:

“[Counsel.] Did anybody tell you at any time that if you implicated somebody else in this case that you yourself would not be prosecuted?
“[Taliento.] Nobody told me I wouldn’t be prosecuted.
“Q. They told you you might not be prosecuted?
“A. I believe I still could be prosecuted.
“Q. Were you ever arrested in this case or charged with anything in connection with these money orders that you testified to?
“A. Not at that particular time.
“Q. To this date, have you been charged with any crime?
“A. Not that I know of, unless they are still going to prosecute.”

In summation, the Government attorney stated, “[Taliento] received no promises that he would not be indicted.”

The issue now before the Court arose on petitioner’s motion for new trial based on newly discovered evidence. An affidavit filed by the Government as part of its opposition to a new trial confirms petitioner’s claim that a promise was made to Taliento by one assistant, DiPaola, that if he testified before the grand jury and at trial he would not be prosecuted. DiPaola presented the Government’s case to the grand jury but did not try the case in the District Court, and Golden, the assistant who took over the case for trial, filed an affidavit stating that DiPaola assured him before the trial that no promises of immunity had been made to Taliento. The United States Attorney, Hoey, filed an affidavit stating that he had personally consulted with Taliento and his attorney shortly before trial to emphasize that Taliento would definitely be prosecuted if he did not testify and that if he did testify he would be obliged to rely on the “good judgment and conscience of the Government” as to whether he would be prosecuted.

The District Court did not undertake to resolve the apparent conflict between the two Assistant United States Attorneys, DiPaola and Golden, but proceeded on the theory that even if a promise had been made by DiPaola it was not authorized and its disclosure to the jury would not have affected its verdict. We need not concern ourselves with the differing versions of the events as described by the two assistants in their affidavits. The heart of the matter is that one Assistant United States Attorney — the first one who dealt with Talien-to — now states that he promised Taliento that he would not be prosecuted if he cooperated with the Government.

As long ago as Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791, 794, 98 A.L.R. 406 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with “rudimentary demands of justice.” This was reaffirmed in Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942). In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), we said, “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id., at 269, 79 S.Ct. at 1177, 3 L.Ed.2d at 1221. Thereafter Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. [1194], at 1197, 10 L.Ed.2d at 218 (1963), held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.” See American Bar Association, Project on Standards for Criminal Justice, Prosecution Function and the Defense Function § 3.11(a). When the “reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of evidence affecting credibility falls within this general rule. Napue, supra, 360 U.S. at 269, 79 S.Ct. at 1177, 3 L.Ed.2d at 1221. We do not, however, automatically require a new trial whenever “a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . .” United States v. Keogh, 391 F.2d 138, 148 (CA2 1968). A finding of materiality of the evidence is required under Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1196, 10 L.Ed.2d at 218. A new trial is required if “the false testimony could . in any reasonable likelihood have affected the judgment of the jury. . . . ” Napue, supra, 360 U.S. at 271, 79 S.Ct. at 1178, 3 L.Ed.2d at 1222.

In the circumstances shown by this record, neither DiPaola’s authority nor his failure to inform his superiors or his associates is controlling. Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. See Restatement (Second) of Agency § 272. See also American Bar Association Project on Standards for Criminal Justice, Discovery and Procedure Before Trial § 2.1(d). To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.

Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.

For these reasons, the due process requirements enunciated in Napue and the other cases cited earlier require a new trial, and the judgment of conviction is therefore reversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . See Appendix I.

      . Miss. Code Ann. § 99-15-53 (1972) authorizes a nolle prosequi, but see State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965), and State v. Kennedy, 96 Miss. 624, 50 So. 978 (1910), which hold that a nolle prosequi does not in all events preclude further prosecution. It is not the same as immunity.

      . See Appendix II.

      . During oral argument in this Court it was stated that DiPaola was on the staff of the United States Attorney when he made the affidavit in 1969 and remainéd on that staff until recently.

      . DiPaola’s affidavit reads, in part, as follows:
      “It was agreed that if ROBERT EDWARD TALIENTO would testify before the Grand Jury as a witness for the Government, ... he would not be . . . indicted. ... It was further agreed and understood that he, ROBERT EDWARD TALIENTO, would sign a Waiver of Immunity from prosecution before the Grand Jury, and that if he eventually testified as a witness for the Government at the trial of the defendant, JOHN GIGLIO, he would not be prosecuted.”

      . Golden’s affidavit reads, in part, as follows:
      “Mr. DiPaolo . advised that Mr. Tal-iento had not been granted immunity but that he had not indicted him because Robert Talien-to was very young at the time of the alleged occurrence and obviously had been overreached by the defendant Giglio.”

      . The Hoey affidavit, standing alone, contains at least an implication that the Government would reward the cooperation of the witness, and hence tends to confirm rather than refute the existence of some understanding for leniency.


author: BOWLING, Justice, for the Court:

text:
    Lloyd Thomas PAYNE v. STATE of Mississippi.
    No. 50691.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Rehearing Denied Nov. 1, 1978.
    Joe B. Timmons, Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   BOWLING, Justice, for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of Lee County, Mississippi, for the sale of a controlled substance. The indictment was returned on August 16, 1976. An attorney was appointed on August 23, 1976, and on the same date appellant executed a waiver of arraignment and entered a plea of not guilty. The date of his trial was August 31, 1977.

Appellant alleges two assignments of error, namely:

1. The court erred in not dismissing the indictment against the defendant when more than 270 days passed from the time of arraignment until the date of trial as required by Mississippi Code Annotated section 99-17-1 (Supp.1977).

2. The verdict of the jury was the result of bias, prejudice, or fraud, or is manifestly against the weight of the credible evidence.

There is no need to discuss the second assignment of error as the cause is disposed of by the first. We agree with that assignment and reverse the cause.

At the 1976 session the Legislature passed the following statute, Code section 99-17-1. This statute is plain and unambiguous and reads:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

It is readily seen that the accused was tried and convicted more than 270 days after his arraignment and plea of not guilty. The only question remains is whether or not the delay comes within the framework of the exceptions in the statute.

Lee County has four terms of circuit court: The first Monday of February; the third Monday of May, August and November. The record reveals that during the November, 1976, term (December 3, 1976), the court issued an order continuing the cause “on motion of the defendant.” The only further information regarding trial settings, as seen from the record, are copies of subpoenas issued on behalf of the State commanding witnesses to appear on February 17, 1977, during the February term of court, and on June 9, 1977, during the June term of court. There is no order continuing the cause for any reason at the request of either party. Nor are there any motions requesting continuance after December 3, 1976.

On August 1, 1977, after subpoenas had been issued for trial on August 31, appellant’s attorney filed a motion to dismiss, setting out, among other grounds, the statute hereinbefore cited. No ruling on this motion appears in the record.

The only possible exception we could attribute to those authorized by Code section 99-17-1 is the period of time between December 3, 1976, and the February, 1977, term of court. It is readily seen that even discounting this period of time appellant was not tried within the mandatory period set out in the statute. The cause is therefore reversed and appellant discharged.

REVERSED AND APPELLANT DISCHARGED.

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


text:
    E. L. BOTELER, Jr. v. STATE of Mississippi.
    No. 50485.
    Supreme Court of Mississippi.
    Oct. 4, 1978.
    Rehearing Denied Nov. 1, 1978.

      Matthew H. Greenbaum, Michael S. Fawer, New Orleans, La., Wilkins, Ellington & James, Samuel H. Wilkins, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

      . Cofer, J., took no part in the rehearing.

   SUGG, Justice, for the Court:

The Grand Jury of the Circuit Court of the First Judicial District of Hinds County returned three indictments against the defendant charging that he embezzled $25,-000, $75,000 and $100,000 in money which was the property of the State of Mississippi. On defendant’s motion to consolidate the indictments for trial, the trial court consolidated the indictments charging the $25,000 and $75,000 embezzlements, but not the $100,000 embezzlement. The jury found the defendant guilty on both indictments. Defendant was sentenced to ten years in the Mississippi Department of Corrections on each charge. The judgment provided that the sentences would be served concurrently with four years of each sentence suspended.

The state’s case established that defendant, while serving as Director of the Mississippi State Highway Department, caused a Highway Department Imprest Fund check in the amount of $25,000 and a state warrant in the amount of $75,000 to be issued to a fictitious entity called the Regional Planning Consortium. The Imprest Fund check was dated April 24 and the warrant May 13, 1975.

Defendant deposited the proceeds from the $25,000 Imprest Fund check in the Bank of Mississippi in Grenada to the account of “E. L. Boteler, Sr. or E. L. Boteler, Jr.,” less $10,000 which was deposited in defendant’s Riverdale Farm Account in the same bank.

Defendant deposited the $75,000 state warrant in the Fulton National Bank of Atlanta, Georgia on June 3, 1975 to an account styled “Regional Planning Consortium” with the defendant as the only authorized signatory.

Defendant withdrew $70,000 from the account in Fulton National Bank in two checks for $30,000 and $40,000, leaving $5,000 in the Regional Planning Consortium account, at the time of the trial.

The $30,000 check on the Georgia bank was deposited in the Bank of Mississippi in Grenada to the account of E. L. Boteler, Sr. or E. L. Boteler, Jr. on August 11, 1975. The deposit slip shows that $11,093.15 was deducted for a note payment and interest, leaving a net deposit of $18,906.85. The $40,000 check drawn on the Fulton National Bank by defendant was payable to Greenwood Production Credit Association and applied to his outstanding loan with the Association. The check was delivered to the Association on August 20, 1975 pursuant to a request that defendant make a payment on his loan from outside income because his loan was deteriorating.

Defendant issued ten checks on the account of E. L. Boteler, Sr. or E. L. Boteler, Jr. in the Bank of Mississippi in Grenada from May 1, 1975, to October 4, 1975 in the total amount of $32,433.31. The checks varied in amounts from $7.12 to $7,750.51 and were issued for defendant’s purposes. There was also debited to this account $93.05, $3.05 to pay for personalized checks and $90.00 for credit life insurance.

The state also proved that $10,960.34 was withdrawn by check from the Riverdale Farm account between April 15, 1975 and May 6, 1975, most of the checks being signed by Lee Boteler.

In order to secure the $100,000 in question, Boteler prepared a memorandum dated April 24, 1975 which follows:

MISSISSIPPI STATE HIGHWAY DEPARTMENT
Inter-Departmental Memorandum
TO: Assistant Director-Administration
DATE: April 24,1975
PROM: Director
Subject or Project No: /s/ E. L. Boteler
Regional Planning Consortium 2 Court Square Atlanta, Georgia
Efforts have been exerted for several years to develop a transportation route from Brunswick, Georgia, to Kansas City, Missouri, either as an extension of the Interstate System or as a comparable facility. Those efforts include promotion by a private organization, The Multi-State Multi-Mode Transportation Corridor Association. Its membership consists of individuals, towns along the proposed route and representatives of the States of Missouri, Arkansas, Tennessee, Mississippi, Alabama and Georgia.
There was also a parametric study of the proposed route conducted through the cooperative efforts of all the affected states and the Department of Transportation. This is the only part the State of Mississippi has made any financial contribution to. This study was conducted by a consultant with the State of Alabama selecting and managing the consultant. The study is complete and has been presented to the several states as well as to the Association.
The states mentioned above, with the possible addition of the State of Florida, are now, through their respective Highway or Transportation Departments and using the parametric study, more definitely developing conceptual plans and proposed legislation. It is this effort that Mississippi State Highway Department will need to support financially and is estimated to cost $700,000. At the beginning each state has agreed to put up $100,000, for a total of $600,000. If the State of Florida elects to participate, the total will be $700,000. The Administrative Officer of each participating Department will direct the activities and the Georgia Department will act as Treasurer or Trustee of accounts.
Mississippi’s pro rata part of the funds is now due and you are requested to provide the same from programmed preliminary engineering on U. S. 78. Payment is to be made to:
Regional Planning Consortium
2 Court Square
Atlanta, Georgia
ELB:ly
In his brief, defendant states:
At the trial, the State conclusively established that the defendant had caused a Highway Department Imprest Fund check in the amount of $25,000 and a State Warrant in the amount of $75,000 to be issued to a fictitious entity known as the Regional Planning Consortium in April and May 1975, respectively, and that these funds were ultimately transferred to Boteler’s personal account and/or utilized for his own benefit. Defendant did not dispute these facts, but testified that the checks were issued to repay him for the expenditure of a like amount of cash given to Herschel Jumper, the Highway Department Commissioner for the Northern District. Jumper was given the money for the purpose of funding a lobbying effort in Washington which had as its goal securing Congressional legislation to pay the cost of building bridges across the Tennessee-Tombig-bee Waterway.
(References to Abstract Pages Omitted).

The only defense offered was that defendant was acting in good faith, believing that he had a right to reimburse himself for the funds given to Jumper for lobbying purposes, although he recognized and admitted that there was no statutory authority for him to expend funds of the Mississippi State Highway Department for such purposes.

Boteler testified that he gave Jumper, either personally or through an intermediary, $125,000 for lobbying purposes. He said he gave Jumper $25,000 in cash on April 22, 1975, $30,000 in cash on July 22, 1975, and Steve Guyton $30,000 in cash on June 10, 1975 to be delivered to Jumper, who denied receiving any money from the defendant.

Although defendant was not being tried on the third indictment charging him with embezzling $100,000, he injected the third indictment into the trial by cross-examination and by his direct testimony.

According to defendant he received an additional $100,000 by endorsing a check from the Tombigbee River Valley Water Management District, which had agreed to advance engineering funds to the Highway Department, and converted it into four cashier’s checks for $25,000 each, payable to the Regional Planning Consortium. Defendant testified that he deposited one of these checks in the Bank of Mississippi in Grenada and retained the other three in his desk drawer. He further testified that he borrowed $125,000 and reimbursed the state for the $100,000 check from the Tombigbee River Valley Water Management District.

Defendant testified that he was able to give Jumper $125,000 in cash because he had that amount in a closet in his apartment in Jackson. He said his father entered a hospital in 1970 and gave him a black box which contained his important papers, along with $25,000 in cash. He kept the box in his apartment in Jackson. After his father’s death, he entered his father’s safety deposit box and discovered $102,000 in one hundred dollar bills and transferred this sum to his apartment.

In Temple v. State, 288 So.2d 835 (Miss. 1974) we set forth the essential elements of embezzlement in the following language:

The essential elements of embezzlement are set out in May v. State, 240 Miss. 361, 127 So.2d 423 (1961), as follows:
The constituent elements of the offense are (1) an agent or trustee .
(2) embezzling or converting to his own use, (3) . . . money, or other valuable . . property of any kind,
(4) . intrusted to his care or possession by virtue of his position or employment. Code Sec. 2115; 18 Am. Jur., Embezzlement, Sec. 2. (240 Miss, at 363, 127 So.2d at 425). [288 So.2d at 838].

There is no doubt from the testimony in this case that defendant converted the funds to his own use. The state’s case showed beyond a reasonable doubt that the defendant deposited the $100,000, used the money to pay debts, and for other purposes of the defendant. His defense is that he gave Herschel Jumper $125,000 of his own funds for lobbying purposes and repaid himself from state funds. This is not a defense to embezzlement.

In the case of State v. Pratt, 114 Kan. 660, 220 P. 505 (1923) the Supreme Court of Kansas had before it an embezzlement case where a bank president claimed that he used embezzled funds for the benefit of the bank and not for his personal use. The Kansas Court stated:

Appellant offered to show that, because of heavy loans made to some of its directors, the bank of which he was president was hard pressed for funds; that the proceeds from the sale of the bonds and the F. C. Cragg deposit were used for the benefit of the bank, and not for his personal use. These matters do not constitute a defense. The motive which prompted the embezzlement is not material. 20 C.J. 436. The money was applied to the use of appellant, when he used it in the way he wanted to use it. Whether he chose to use it on his personal obligations, or give it to the bank of which he was president, or spend it in riotous living, he directed its disposition, and thereby applied it to his own use. (220 P. at 508).

If defendant could be acquitted of the charge of embezzlement on the defense offered in this case, any embezzler could be acquitted upon a simple showing that he did not retain the embezzled funds for his own use but gave them to another person. Whether the defendant chose to use the money for his personal obligations or give it to Herschel Jumper for lobbying purposes does not matter, because, in either event, he directed its disposition and thereby applied it to his own use. The element of conversion was established.

It is against this factual and legal background that we must consider defendant’s only assignment of error which is stated by him as follows:

Appellant’s trial was rendered fundamentally unfair by gross prosecutorial misconduct, when the prosecution, in defiance of the circuit judge’s order, failed to disclose before trial, that it had in its possession notes of a lengthy statement made by defendant to a State’s witness, and then utilized said previously undisclosed statement to undermine defendant’s credibility, the central issue in the case, by attempting to demonstrate to the jury that the defendant’s prior statement contradicted his sworn testimony from the witness stand in several crucial aspects.

Defendant in his brief with reference to this assignment of error states:

By flatly conceding the conversion of State monies, but asserting that he believed that he had a right to reimburse himself for the cash that he had previously expended for the benefit of the State of Mississippi, the only issue at trial became Mr. Boteler’s credibility, as it reflected upon the state of his mind and the existence or lack of criminal intent.
Accordingly, in presenting his good faith defense at trial, and in attempting to maintain his credibility with the jury, it was crucial that Mr. Boteler be able to demonstrate that his testimony from the witness stand was consistent in every important respect with the version of the decisive events which he had narrated to third parties at or about the time his actions were discovered.
In preparing for the trial, defense counsel had learned that during July, 1976, when the State auditor had uncovered what had taken place, Boteler had spoken to John Tabb, E. L. Shaw and Sam Waggoner about the missing funds. Counsel satisfied themselves that, in each instance, Boteler had described his actions and motives in substantially the same terms that he would from the witness stand. Based upon this consistency of position, counsel fashioned the defense strategy — wholly ignorant of the fact that Boteler had spoken at length to John Hamilton on July 29,1976, that the latter had made contemporaneous notes of the interview; and that the notes reflected Boteler ostensibly telling Hamilton a story very different from the one appellant would relate from the witness stand.

John Hamilton, Director of the State Performance and Evaluation and Review Committee, interviewed Boteler on July 29, 1976. The interview covered the subject of missing funds and also the matter of a contract for design of bridges to cross the Tennessee-Tombigbee Waterway. The question of the contract for design of bridges is not pertinent to this case. Hamilton made notes during the interview in the presence of Boteler which were introduced for identification. Boteler’s contention is that these notes and the testimony of Hamilton based on his notes were devastating to his case because the central issue in the case was defendant’s credibility. Defendant then states in his assignment of error that Hamilton’s testimony contradicted the sworn testimony of defendant in “several crucial respects.” Hamilton’s testimony is summarized in defendant’s abridgment of the record as follows:

Our conversation was in private and lasted about two hours. When I asked him about the $200,000, he said he had given $125,000 to Herschel Jumper in a series of cash transactions. Mr. Boteler said a $25,000 check and a $75,000 check came out of the Imprest Fund. He stated he had given the first $25,000 to Mr. Jumper himself, and deposited the $75,000 in an Atlanta Bank in an account styled “Regional Planning Consortium.” He stated, I believe, that $40,000 of that was transferred to Greenwood Production Association and $30,000 to the Bank of Grenada, leaving $5,000 in the Atlanta account. Mr. Boteler told me that the entire $70,-000 that he had transferred to his personal account, plus $5,000 of his own money had been given to Jumper, and of that amount $30,000 was relayed to Jumper through Steve Guyton. He never mentioned he was paying himself back. Mr. Boteler told me he was personally responsible for $25,000, but that the Commissioners were jointly liable with him for $175,000 as that was part of the Commission minutes. This did not make sense to me because only $100,000 was part of the Commission minutes.
Mr. Boteler said that Jumper wanted the money to promote the Multi-State Multi-Mode project and for lobbying in Washington. He thought the money had gone into local politics and to Washington lobbyists. He further stated that Senator Jennings Randolph, Chairman of the Senate Public Works Committee, ‘takes his pound of flesh from every public works contract.’ Mr. Boteler never mentioned disbursement of any monies in connection with the Tenn-Tom project. He stated he had repaid Hamp King $100,000 and had the other $100,000 in a savings account.
The notes that I made contemporaneously to my conversation with Mr. Boteler reveal that we did discuss the need for funds for the Tenn-Tom bridges. This was just prior to the description of the cash payments to Jumper. Mr. Boteler told me that he gave Jumper a total of $125,000 cash, $30,000 of which was delivered through Guyton. Boteler knew I had the power to subpoena bank records. He told me he put $30,000 in the Grenada bank and then took out the cash and gave it to Jumper, although the bank records do not reveal such a transaction. It did not occur to me that Greenwood Production Credit was not the type of institution Mr. Boteler could have made a withdrawal from. I wrote down what Mr. Boteler told me.
Mr. Boteler stated that $175,000 was approved on the Minutes of the Commission. I did not misinterpret this. Mr. Boteler said that when the second $100,-000 check had come into the Highway Department, he had taken it to a bank and exchanged it for four cashier’s checks and deposited it in his own bank. Boteler told me he then paid that money to Jumper. This is my testimony even though I am aware that this took place in October, 1975, three months after Jumper was defeated in a re-election bid. I did not know what Mr. Boteler meant when he said, ‘Senator Randolph always gets his pound of flesh.’

The notes that Hamilton made during the interview with the defendant contained five references to cash delivered to Jumper but do not show where the cash came from nor the dates on which the payments were made. The notes are not in narrative form and it would be difficult, if not impossible, to reconstruct the conversation between Hamilton and the defendant without Hamilton’s testimony.

Hamilton testified that the payments to Jumper were made out of funds deposited by Boteler but such facts do not appear in Hamilton’s notes, so this testimony would depend on the independent recollection of Hamilton about the conversation. Defendant relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) as support for his argument that the prosecution breached its constitutional duty to disclose exculpatory as well as inculpatory evidence.

The United States Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) dealt with the suppression of evidence by the prosecution that would have been beneficial to defendant’s self-defense theory. The court acknowledged that the prosecution does not have a constitutional duty to routinely deliver its entire file to defense counsel. The court fully recognized the problems that would arise if a policy of unlimited discovery was established and in footnote 20 stated:

It has been argued that the standard should focus on the impact of the undisclosed evidence on the defendant’s ability to prepare for trial, rather than the materiality of the evidence to the issue of guilt or innocence. See Note, The Prosecutor’s Constitutional Duty to Reveal Evidence to the Defense, 74 Yale L.J. 136 (1964). Such a standard would be unacceptable for determining the materiality of what has been generally recognized as “Brady material” for two reasons. First, that standard would necessarily encompass incriminating evidence as well as exculpatory evidence, since knowledge of the prosecutor’s entire case would always be useful in planning the defense. Second, such an approach would primarily involve an analysis of the adequacy of the notice given to the defendant by the State, and it has always been the Court’s view that the notice component of due process refers to the charge rather than the eviden-tiary support for the charge.
(427 U.S. at 112, 96 S.Ct. at 2401-02, 49 L.Ed.2d at 354-55).

We note that the testimony of defendant’s own witness, Sam Waggoner, closely parallels that of the testimony of Hamilton as to the source of the funds from which Boteler gave Jumper $125,000. We also note that defendant was aware of this conversation with Hamilton, saw Hamilton make notes, but apparently, for some reason best known to himself, failed to disclose this information to his attorneys.

We hold that the constitutional requirement of a fair trial was not violated by a failure to deliver the notes to the defendant before trial for the following reasons: (1) The notes standing alone, without explanation, do not reveal either inculpatory or exculpatory evidence. (2) The pretrial discovery order did not require the prosecution to deliver the notes. (3) The defendant was as aware of the existence of the notes as was the prosecution because the defendant saw the notes being made by Hamilton during the interview.

When this case is viewed in its entirety, we reject defendant’s contention that he was not afforded a fair trial because the notes were not delivered to him before the trial. According, to the defendant, he took funds of the State of Mississippi for the purpose of reimbursing himself for personal expenditures which, according to him, were made to enhance the future of Mississippi. As stated infra this was no defense to the crime of embezzlement.

AFFIRMED.

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

COFER, J., takes no part.