author:
PATTERSON, Chief Justice,
      WALKER, Justice, BOWLING, Justice,

text:
    Jo Carolyn SHERMAN v. STATE of Mississippi.
    No. 50448.
    Supreme Court of Mississippi.
    May 24, 1978.
    Rehearing Denied July 12, 1978.

      Swartzfager & Swartzfager, Paul G. Swartzfager, Sr., Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BOWLING and COF-ER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Appellant was convicted of the crime of forgery by the Circuit Court of the Second Judicial District of Jones County, Mississippi, and received a sentence of one year in the county jail.

On appeal appellant alleges three assignments of error, to-wit:

1.The indictment which is the basis of appellant’s conviction failed to adequately inform the appellant of the charge against her;
2. The trial court erred in overruling objections to the purported waiver and statement; and
3. The trial court erred in overruling appellant’s motion for a directed verdict.

Appellant was indicted and convicted under Mississippi Code Annotated section 97-21-7 (1972), which reads as follows:

If any officer authorized to take the proof or acknowledgment of any conveyance of real or personal estate, or of any other instrument which by law may be recorded, shall wilfully and falsely certify that any such conveyance or instrument was acknowledged by any party thereto, when in truth such acknowledgment was not made, or that any such instrument or conveyance was proved, when in truth such proof was not made, he shall, upon conviction, be guilty of forgery.

The above section is included in the chapter setting out all crimes of “forgery and counterfeiting.” 'The penalty statute for sentencing persons convicted of any of the forgery statutes is set out in Code section 97-21-33, as follows:

Persons convicted of forgery shall be punished by imprisonment in the penitentiary for a term of not less than two (2) years nor more than fifteen (15) years, provided, however, that when the amount of value involved is less than one hundred dollars ($100.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than twelve (12) months, within the discretion of the court.

At the time of the incident the result of which appellant was indicted, tried and convicted, she was a notary public working in the office of an insurance company. The evidence reveals that on or about September 21, 1976, appellant, as a notary, affixed her signature and seal to a warranty deed purportedly signed by twelve grantors. There were twelve separate acknowledgments. All of them were dated September 21, 1976. The deed purported to convey certain land in the Second Judicial District of Jones County, Mississippi. Sometime later, one of the purported grantors in the deed ascertained that timber was being cut off the land described in the deed and his investigation revealed that the deed in question was a forgery. A number of the purported grantors were deceased and one was an invalid living out of state.

On December 14,1976, appellant was contacted by the Laurel Police Department and requested to confer with the chief of detectives about the matter. She called an attorney and was advised that if she was not implicated she should cooperate with the authorities. She went to the police department and before she was questioned the testimony reveals that she was advised of her rights and signed a form waiver. She stated at that time that the alleged grantors in the deed appeared before her in “one’s, two’s and three’s.”

The next day, December 15, appellant was arrested and before interrogating her the law enforcement officers testified that she was again advised of her rights. She then gave an oral statement changing her statement given the day before and stated that one man brought the deed to her and that she completed all acknowledgments at the same time, and that the alleged grantors did not appear before her.

We have studied carefully the record and the briefs and can find no reversible error therein. Assignments of error 1 and 3 may be discussed together. Appellant contends that the indictment was defective as it did not identify the “party defrauded.” A reading of the indictment clearly shows that it closely follows the wording of the statute. In addition to this, the indictment specifically made the deed in question a part of the indictment and a copy was attached thereto. It is obvious that the persons defrauded were those whose signatures were attached to the instrument.

Under assignment No. 2 appellant contends that she was coerced into changing her statement on December 15, 1976. She alleges that the reason for this was the chief of detectives threatening to put her in a jail cell. A pretrial hearing was held by the lower court on the objection to the second statement given by appellant. It suffices to say that the evidence presented clearly was sufficient for the lower court to rule that there was no coercion or duress and that appellant freely and voluntarily gave the statement.

The part of the cause that gives this Court greater concern is the sentence of one year in the county jail. As hereinbefore stated, there are several statutes on “forgery.” Some of them require a “criminal intent” and some do not. This is reflected by Code section 97-21-27, which reads in part that “Whenever, by any of the provisions of this chapter, an intent to defraud is required to constitute a forgery,” etc. The statute under which appellant was convicted merely requires that a person charged under the statute “wilfully and falsely” performed the prohibited act. The sentence statute is the same whether or not there was an intent to defraud or a criminal intent.

We observe, however, that the sentence imposed was within the limitations of the statute, permitting discretion to the trial court, in the initial sentence, but not to this Court on appeal. Ellis v. State, 326 So.2d 466 (Miss.1976); Ainsworth v. State, 304 So.2d 656 (Miss.1975). There being no error in the trial nor in the sentence, the cause is affirmed.

This case was considered by a conference of the justices en banc.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, BROOM and LEE, JJ., concur.

BOWLING and COFER, JJ., dissent.

WALKER and COFER, JJ., dissent by separate opinion.

WALKER, Justice,

dissenting:

I must respectfully dissent from the holding of the majority. I cannot in good conscience lend validity to this statute, Mississippi Code Annotated section 97-21-33 (1972), which carries with it such a harsh penalty — up to fifteen years in the penitentiary — in the absence of proof that someone was defrauded or that there was some criminal intent to defraud.

COFER, J., joins this dissent.

BOWLING, Justice,

dissenting:

I dissent in part and would remand the case for an additional sentence hearing.

So far as I can ascertain, this is the first case resulting in a conviction under Mississippi Code Annotated section 97-21-7 (1972), although it has been a part of the Code for many years. This conviction and the majority opinion certainly serve to call attention of this section to the many notary publics and other officials authorized to take acknowledgments of persons executing all types of instruments. The opinion should serve as a cautionary measure that the statute should be complied with in all instances of taking acknowledgments.

I have no choice but to agree that the jury had ample evidence to support its finding of guilty under the language of the statute. The part that gives me concern is the sentencing provisions. Unfortunately, this statute is included in the chapter styled “Forgery and Counterfeiting,” which includes statutes pertaining to all types of forgery. The chapter concludes with one sentencing statute, including that pertaining to the statute in question. Practically all of the forgery statutes require a criminal intent. Section 97-21-7, under which appellant was convicted, merely requires that the act was done “wilfully and falsely.”

The record does not show that a presen-tence investigation and hearing were conducted prior to the imposition of appellant’s sentence. Without criminal intent, the sentence appears to be harsh. I hasten to say that this Court should not unduly interfere with the sentencing procedure of the lower court. The learned circuit judge was in a much better position to evaluate the required sentence than this Court. After reading the whole record, it probably does not contain the complete picture of the sentencing procedure and results. For instance, it in no way (and properly so) reflects what incidents or charges resulted to other persons who obviously were involved in this entire matter. We do not single out any person, but for the purpose of example, the record shows that the matter was started by a finance company in checking a title for a prospective purchaser of the land described in the forged deed; a description of the perpetrator of the deed was available; the person or firm cutting the timber off the land under the provisions of the forged deed, and other facts which show a strong probability that one or more other persons were more involved in this matter than appellant.

For these reasons and in order to insure the application of justice, I am of the opinion that the cause should be affirmed as to conviction and remanded for an investigatory sentence hearing, after which the lower court should reconsider the imposition of sentence. I do not mean to state that after this additional sentence hearing this sentence should be reduced. I have sufficient confidence in the trial judge to leave this to his discretion. Of course, I further realize that under the present sentence and under the majority opinion, due to the fact that the sentence was for a term in the county jail, the lower court, if subsequent developments warrant, could take care of any improper sentence by suspension, etc.

As stated at the outset, for the purpose of insuring justice, I would affirm the cause and remand it to the lower court for a further sentence hearing.

COFER, J., joins in this dissent.


source: Caselaw Access Project

author: NEAL B. BIGGERS, Commissioner

license: Public Domain

text:
    Cleo GRAHAM v. Thomas D. MURRAY.
    No. 50256.
    Supreme Court of Mississippi.
    May 31, 1978.
    Rehearing Denied July 12, 1978.
    Guy C. Faggard, Pascagoula, for appellant.
    Bryan, Nelson, Allen & Schroeder, Vincent J. Castigliola, Jr., Pascagoula, for ap-pellee.
    Before ROBERTSON, P. J., LEE and BOWLING, JJ., and BIGGERS, Commissioner.
   NEAL B. BIGGERS, Commissioner

for the Court:

Thomas Murray filed suit against Cleo Graham in the County Court of Jackson County. The allegations of the declaration are unimportant here, since the case is before us and will be disposed of on a procedural matter. In the county court, a jury verdict was awarded appellee, and appellant, in processing an appeal to circuit court, filed cost and supersedeas bonds on June 30, 1976. The appeal of appellant was duly filed and docketed in the Circuit Court of Jackson County on September 7, 1976. The clerk of the circuit court by registered mail notified the attorneys for the appellant and the appellee that the appeal had been docketed and enclosed a copy of the Rules of the Circuit Court governing appeals to the circuit court.

The Jackson County Circuit Court Rules provide that after an appeal from county court has been docketed in the circuit court, the appellant must file an assignment of errors and brief with the court within twenty days from the date of docketing. They further provide that failure to comply with this rule will result in an order of dismissal for lack of prosecution. On October 12, thirty-five days after docketing of the appeal, the appellant herein not having filed an assignment of errors or a brief, the circuit court entered an order affirming the order of the county court due to the appellant’s failure to comply with the court rules. The appellant then filed a motion to set aside the order of affirmance and also filed an assignment of errors. The court denied the motion and appellant appealed to this Court, assigning as error certain rulings of the county court made during the trial.

The first question to be disposed of here is whether this Court may consider the assignment of errors filed by the appellant even though the assigned errors were not considered by the circuit court in affirming the judgment of the county court. We are of the opinion that when no assignment of errors is timely filed in, and is not considered by the appellate court (here circuit court), then no such assignment of errors will be considered by this Court.

In Fowler Butane Gas Company v. Parish, 254 Miss. 585, 181 So.2d 157 (1965), this Court held as follows:

Under the posture of this case, this Court is not concerned with the merits of the appeal, but only with whether the circuit court was in error in denying the writ of certiorari and in dismissing the appeal.

This Court considered the same question in Mississippi State Highway Commission v. Cook, 270 So.2d 695 (Miss.1972). In that case, we disposed of the issue by holding as follows:

There was no assignment of error filed in the circuit court when the case was appealed there from the county court. Under several cases heretofore decided by this Court, we cannot consider any nonju-risdictional questions not presented by an assignment of error in circuit court.

In considering the practical as well as the legal aspects of this procedural issue, we are of the opinion that the only question properly before this Court is whether the circuit court properly affirmed the judgment of the county court on the ground that the circuit court rules were not complied with by the appellant. To hold otherwise and go into the merits of the assignment of errors charged to the county court, which assignment was not filed in the circuit court until after the circuit court affirmed the judgment of the county court, would, in effect, allow a party to circumvent the intermediate appellate process.

The circuit court properly dismissed appellant’s appeal and properly entered the order affirming the judgment of the county court on the ground that appellant failed to file an assignment of errors and brief within the time allowed by the court rules, and we are of the opinion that the judgment of the circuit court should be and it is affirmed.

AFFIRMED.

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

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


author: LEE, Justice,

text:
    Travis JOHNSON v. STATE of Mississippi.
    No. 50474.
    Supreme Court of Mississippi.
    May 31, 1978.
    Rehearing Denied July 12, 1978.

      Cumbest & Cumbest, Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Travis Johnson was convicted of armed robbery in the Circuit Court of Jackson County and was sentenced to fifteen (15) years in custody of the Mississippi State Department of Corrections. He appeals and assigns the following errors in the trial below:

(1) The verdict of the jury was against the overwhelming weight of the evidence.

(2) The trial court erred in overruling a motion for new trial.

(3) The court erred in allowing the in-courtroom identification of the defendant by the prosecuting witness over objection.

(4) Appellant’s Fifth, Sixth and Fourteenth Amendment rights were violated by ' the prosecution’s post-indictment photographic lineup.

(5) The trial court erred in denying the writ of error coram nobis.

On January 3, 1974, Faye’s Grocery in Moss Point, Mississippi was robbed of approximately five hundred dollars ($500.00). Mrs. Kim Stone, the clerk on duty, testified that, at approximately 6:45 a.m., appellant came into the store and ordered soap powder, bleach and beer. After she rang up the bill for the items, appellant pointed a gun at her and said, “Give me all your money.” She then complied with his order to follow him out of the store and “round back,” but, at the first opportunity, she ran to a nearby trailer.

Detective Barry Jones investigated the robbery and developed a suspect. On January 9, six days after the robbery, he showed Mrs. Stone a series of photographs. She identified one photograph as appellant. Mrs. Stone was shown other photographs on January 25, 1977, approximately two weeks before the trial, and she again picked out a photograph of appellant. During the trial of the case, she made an in-eourt identification of the appellant as the person who committed the robbery.

Appellant’s defense was an alibi. He testified that during Christmas, 1973, he lived in Nashville, Tennessee, and he went to Jackson County for a visit during the Christmas holidays. He arrived in Jackson County Saturday, December 29, where he stayed with his mother. He further testified that on January 2, 1974, he went to Columbus, Georgia with his cousin, Willie James Riley, accompanied by Angela Johnson, Raymond Simmons, and Lonnie Johnson, that he decided to go back to Nashville, Tennessee, and he left Columbus by bus en route to Nashville in the early morning hours of January 3, 1974. Angela Johnson, her mother, Mrs. Barbara Johnson, and father, Willie James Johnson (whose home they visited in Columbus) corroborated appellant’s alibi in part. However, they were unable to testify that appellant boarded the bus and went to Nashville. Raymond Simmons and Willie James Riley were not called as witnesses, although they lived in Moss Point, Mississippi, and their addresses were known to appellant.

I.

Was the verdict of the jury against the overwhelming weight of the evidence?

II.

Did the court err in overruling a motion for new trial?

Lonnie Johnson was called to the stand as a rebuttal witness for the State. No objection was made to any of his testimony. He was asked three different times who returned with him from Columbus, Georgia to Moss Point and his response to each question was that he did not remember. He was excused and Detective Barry Jones was called as a rebuttal witness. No objection was made to the testimony offered by him. He testified that he took a written statement from Lonnie Johnson [See Appendix] and, among other things, Lonnie Johnson told him that appellant returned with him to Moss Point, that they got back to Moss Point about 6:00 a.m., Thursday, January 3, 1974, and that Travis Johnson got out of the automobile near Bill Johnson’s grocery on Frederick Street.

Mrs. Stone positively identified appellant as the person who committed the robbery. It is well settled that such testimony, when unimpeached, is sufficient to sustain a verdict of guilty. Contrary to Mrs. Stone’s positive identification, appellant testified that he was in Nashville, Tennessee when the crime was committed. The fact that he actually caught a bus to Nashville and was in Nashville is not corroborated. The jury was not under a duty to accept the alibi of appellant [Spikes v. State, 302 So.2d 250 (Miss.1974)] and, viewing the evidence as a whole, we are of the opinion that the verdict of the jury was not against the overwhelming weight of the evidence, and that the motion for new trial was correctly overruled by the court. Murphree v. State, 228 So.2d 599 (Miss.1969); Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949).

III.

Did the court err in allowing the in-court identification of appellant by the prosecuting witness over objection of counsel?

Improper use of photographs by police officers may cause witnesses to be mistaken in identifying criminals. The danger increases, if a witness is shown pictures of several persons and among them is a photograph of a single individual which is emphasized or is shown in some particular manner. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Appellant contends that Mrs. Stone could not identify him at trial as the person who robbed her three years earlier and that her memory was refreshed by viewing the photographs two weeks before trial. However, Mrs. Stone testified that she could identify appellant without having seen the pictures and there was no doubt in her mind that appellant was the robber. She went through the photographs at the police station and chose appellant’s picture; no suggestion was made as to who the suspect was at the time the photographs were seen by her. Mrs. Stone testified she was only two feet away from appellant when the robbery occurred, and she could not forget him. There is ample evidence that Mrs. Stone’s in-court identification was based upon independent facts and, under the totality of circumstances surrounding the confrontation, there was no error in permitting the in-court identification. Clubb v. State, 350 So.2d 693 (Miss.1977); Stevenson v. State, 244 So.2d 30 (Miss.1971).

IV.

Were appellant’s Fifth, Sixth and Fourteenth Amendment rights violated by the prosecution’s post-indictment photographic lineup?

Appellant contends that the photographic lineup was not permissible because counsel was not present at the time Mrs. Stone viewed the photographs. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), it was held that a post-indictment lineup reaches the critical stage of the prosecution which requires presence of counsel. Appellant argues that this rule should apply where a witness views a photographic lineup.

The United States Supreme Court has held that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the government for the purpose of allowing a witness to make identification [United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973)], and this Court followed that principle in Clubb v. State, supra.

There was no violation of due process for Mrs. Stone to view the photographs presented to her in the absence of counsel for appellant, and this assignment is without merit.

V.

Did the trial court err in denying the writ of error coram nobis?

After the guilty verdict was returned, appellant filed a petition for writ of error coram nobis setting out that Willie James Riley and Raymond Simmons would testify that appellant left them at the bus station in Columbus, Georgia and did not return with them in the automobile from Columbus to Jackson County. Testimony was taken on the application and Willie James Riley was unable to testify on account of a mental condition. However, Raymond Simmons testified that appellant did not go back with them to Jackson County.

Appellant contends that the writ should have been granted by the trial court because the testimony of Raymond Simmons established that appellant was left at the bus station in Columbus, Georgia and that said testimony would cause a different result, since he was the only witness who could testify that appellant actually took the bus. In Lang v. State, 230 Miss. 147, 87 So.2d 265 (1956), in discussing petitions for writ of error coram nobis, this Court said:

“We recognize that there must be an end to litigation, and a judgment once solemnly entered must not be lightly opened or vacated, and never except for cogent reasons. Such a petition should be confined to the narrowest limits compatible with justice; it will be sustained only if the newly discovered evidence is of such nature that it would be practically conclusive that it would cause a different result; it will not be sustained if the petitioner or his attorney knew of the existence of such evidence at the time of the trial, or could have discovered it by the exercise of due diligence; it will not be sustained if the newly discovered evidence is merely cumulative, or additional to that adduced at the trial; it will not be sustained if the newly discovered evidence merely tends to impeach other testimony offered at the trial; and it must be filed as soon as reasonably practical after the discovery of the new evidence.” 230 Miss. 147 at 172, 92 So.2d 670 at 675-676 (1957).

Although appellant argues that the testimony of Simmons was newly-discovered evidence which was unknown to him at the time of trial, and could not have been discovered with due diligence, and that a different result would have been brought about by such testimony, the conditions of Lang were not met. Appellant knew that Raymond Simmons and Willie Riley went with him to Columbus, Georgia, and knew that they were living in Moss Point and were available at the time of the trial. He testified at trial that Lonnie Johnson left him at the bus station and the testimony of Simmons may be said to be cumulative.

Under the facts of this ease and following the principle stated in Lang v. State, supra, the trial court correctly denied the petition for writ of error coram nobis.

For the reasons stated, the judgment of the trial court is affirmed.

AFFIRMED.

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

Appendix

“On Wednesday, January 2nd, 1974, Travis Johnson, Riley, Nathan Simmons, and myself, Lonnie Johnson, went to Columbus, Georgia, to take my sister, Angela Johnson, home. Travis Johnson was going to catch a bus to Nashville, Tennessee, from Georgia. I, Lonnie Johnson, thought he had enough money but he, Travis Johnson, didn’t so we came back to Moss Point. We — Travis Johnson, Riley, Nathan Simmons, and Lonnie Johnson — got back to Moss Point about six o’clock a.m. on Thursday, January 3rd, 1974. We dropped Riley off at his house first. Then we, Nathan Simmons, Travis Johnson, and Lonnie Johnson, were headed towards my — Lonnie Johnson’s — girlfriend’s house when Travis Johnson asked me, Lonnie Johnson, to let him out just west of Bill Johnson’s Grocery on Frederick Street after you pass the railroad tracks. He, Travis Johnson, got out there and me— Lonnie Johnson — and Nathan Simmons went to my girlfriend’s house at 1717 Brewer Street.”


author: BROOM, Justice,

text:
    FIRST AMERICAN NATIONAL BANK OF IUKA v. Woodrow G. MITCHELL, Jr., et al.
    No. 50238.
    Supreme Court of Mississippi.
    May 31, 1978.
    Rehearing Denied July 12, 1978.

      Aultman, Pope, Aultman & Tyner, Thomas W. Tyner, Hattiesburg, Wynn & Bogen, Greenville, for appellant.
    Price & Krohn, James E. Price, Corinth, for appellees.
    Before SMITH, SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court:

Fraudulent acts of Clint Reed, Vice President of appellant, First American National Bank of Iuka (FANB herein) in forcing appellees, Woodrow G. Mitchell, Jr., Arthur Hugh Mitchell, Billy L. Rider, Mayme Ella Mitchell, Patsy Bonita Mitchell, and James Ronald Mitchell (Mitchells herein), under threat of foreclosure, to sell a 317-acre farm to a purchaser selected by Reed were the foundation of the Mitchells’ tort action against FANB. Trial in the Circuit Court of Alcorn County resulted in a jury verdict and judgment against FANB (in favor of Mitchells) for $100,000 actual and $250,000 punitive damages. We affirm as to liability.

On May 23, 1973, the plaintiffs Arthur Hugh and Woodrow G. Mitchell, Jr., borrowed $69,000 (evidenced by a note) from FANB. The Mitchells, along with several members of their family who had an interest in the property, executed a deed of trust (subordinate to one of record in favor of another lender) on their two farms as security for the note having a due date of May 24, 1974. Reed, Vice President of FANB and manager of its Corinth branch, was the officer who dealt with the Mitchells and closed their loan. Shortly afterward, another of the bank’s officers, Mr. J. P. Year-gain, Vice President and Cashier, altered the due date on the note to November 15, 1973, which the Mitchells claim was done without their consent. Contrary to the policy of FANB, Reed had not submitted the loan matter to the loan committee.

The Mitchells claim that Reed had agreed to give them ten years to pay off the loan. After making their first payment of about $5400 in November 1973, the Mitchells were called in early in 1974 by Reed who said FANB’s loan limit had dropped. Although their loan exceeded the limit by an average of only about $12,000, Reed told them they would have to pay their loan down to around $30,000. Reed did this in spite of the fact, testified to by Mr. Yeargain, that FANB’s loan committee had not told him to do so. The Mitchells unsuccessfully attempted to refinance the loan. Reed then told them they would have to sell part of the property or FANB would foreclose. He also said he had a friend who might be interested in buying one of their farms for $300 an acre. They thought that price was too low, and against their desires attempted to sell the property on their own to prevent foreclosure.

About thirty to sixty days before they made the sale on which this suit is based, they talked to FANB’s president, Dr. Kelly Segars, about what Mr. Reed was doing. Dr. Segars stated that he was not familiar with the loan but if Reed said it had to be done, then they would have to do it. They eventually began to talk to a Dr. Kay, who made several offers that were matched by Reed’s “friend.” Dr. Kay and Gene McFall, his partner, finally offered the Mitchells $187,000 and a two acre lot worth about $5,000. Reed’s “friend” agreed to match that offer, and the Mitchells decided to sell. The two Mitchell brothers who ran the farm then followed Reed to Attorney Mathis’ office and signed the deed to Reese Sen-ter; only Reed and Mathis’ secretary were present (the other Mitchells had already signed the deed). At Mathis’ office they saw a check signed by Reese Senter for $192,000, which he later denied signing. Mathis then disbursed the funds, paying off the various lienholders from the proceeds of the sale to Simmons (grantee of Senter). The Mitchells paid an additional $10,000 of what remained after the disbursements purportedly to have their property released as collateral by FANB (FANB was not yet fully paid).

Three days before the Mitchells sold the property to Senter on April 26, 1974, unknown to the Mitchells, a James G. Simmons (as arranged by Reed) on April 23 had already executed a contract to purchase the property from Reese Senter. Simmons left his $1,000 earnest money check with Reed. On April 26, Senter deeded the property to Simmons for $221,900. The $34,650 difference in what the property was purchased for and sold for was divided between Senter and Don Kirk, but the record is not clear as to exactly what happened to all of it once they received it; disbursements for and to the Mitchells added up to only approximately $187,000. About the time suit was filed, Senter filed an amended income tax return adding his share in this sale. Conspiratorial aspects saturate the whole transaction arranged by Reed with Kirk coordinating the different participating individuals. Mysteriously, Simmons never met Senter or the Mitchells.

FANB assigns eighteen errors. The only propositions which merit discussion are basically the assertions that (1) because of waiver, the Mitchells are precluded from recovery against FANB; (2) FANB breached no duty owed to the Mitchells; (3) the misrepresentations and fraudulent activity occurred outside the scope and course of Reed’s employment; (4) the jury was not properly instructed; and (5) the damages were excessive.

We find no merit to the argument of FANB that the Mitchells by executing a revision agreement on November 25, 1974, which extended their note to November 15, 1975, thereby waived their right of action against FANB. Reliance upon Citizens National Bank v. Waltman, 344 So.2d 725 (Miss.1977) is misplaced because that case and others relied upon are factually distinguishable from the instant case.

The general law is that under the proper circumstances a bank may be liable for the fraudulent acts, assertions, or misrepresentations of its officers which cause injury to the bank’s customer. This liability is limited to acts and representations made by the officer within the scope of his actual or apparent authority when they are proved to have been relied upon to the detriment of the plaintiff. We hold here upon the facts presented that a bank is liable for the fraudulent acts of its officer or agent who, acting within the apparent scope of his authority, induces a debtor (mortgagor) of the bank to enter into a transaction with a third person, or with the officer or agent personally, whereby the debtor is defrauded and damaged.

This jurisdiction apparently has no ease law specifically addressing the facts of this case, but Grenada Bank v. Moore, 131 Miss. 339, 95 So. 449 (1923) is pertinent. There a bank customer deposited certain bonds with the bank’s Ackerman branch through its branch manager who wrongfully hypothe-cated the bonds and borrowed large amounts of money on them. The administrators of the customer’s estate sued to recover the bonds and this Court allowed recovery and stated:

The act of the manager, Torbert, in converting the bonds to his own use, was, in effect, the act of the bank itself. (131 Miss. at 342, 95 So. at 450).

Also, Billups Petroleum Co. v. Hardin’s Bakeries Corp., 217 Miss. 24, 63 So.2d 543 (1953), held Hardin’s responsible for loss due to the fraud of one of Hardin’s route salesmen.

Several foreign jurisdictions have imposed liability upon banks for fraud perpetrated by bank officers. The one distinguishing point in most of these cases is that the courts generally found a fiduciary relationship between the bank and its customers) based on past dealing and the plaintiffs’ reliance upon the bank’s advice, which apparently were not present in the case sub judice. The facts in Rutherford v. Rideout Bank, 11 Cal.2d 479, 80 P.2d 978 (1938), a California decision, are almost identical to the present one. In Rutherford a branch manager told Mrs. Rutherford, the plaintiff, that she should sell her ranch to Finnie, even for $5 an acre because, if she didn’t, the owner of the deed of trust would foreclose on it and his bank would foreclose on her “Home Place,” causing her to lose everything. She then sold it to Finnie for $23 an acre when the reasonable market price was $30 an acre. Later, after discovering evidence that Finnie had bribed the manager, she successfully sued the bank for damages. The California Court in its opinion stated:

That it was within Taylor’s duties as manager of that branch of the bank to discuss with its debtors the action which the bank proposed to take with respect to sums owed it and encumbrances securing such sums is clear. . . . [I]t was also within the line of his duties to discuss generally with debtors the condition of the business in which, as a creditor, the bank had an interest and the measures which the bank would approve as tending to protect its security. (11 Cal.2d at 483, 80 P.2d at 980).

In City Nat’l Bank v. McCann, 193 Ark. 967, 106 S.W.2d 195 (1937), the Arkansas Court reached a similar result. There a bank president sold bonds of a company (in which he was interested) to some of the bank’s depositors as a “safe investment,” which was not true. The trial court found a fiduciary relationship existed and decided for the plaintiffs. In affirming on appeal, the court stated:

It frequently happens that the interest of an officer and that of his bank may be independent of each other, but not necessarily adverse so as to counter the presumption that his knowledge is its knowledge. The counter presumption should be enforced to protect the corporation where the interest of its officer is adverse, but should not be carried so far as to enable the corporation to become a means of fraud or a means to evade its responsibility. (193 Ark. at 986, 106 S.W.2d at 205). (Emphasis added).

The present case of the Mitchells is just such a case. Although Reed’s interest is in a sense independent of FANB’s, at the same time it cannot be said to be adverse because FANB was able to substantially reduce what it considered to be an unfavorable loan. Cases cited by FANB on leaving a master’s business are not applicable because at all times in the instant case Reed appears to the Mitchells to be looking out for the bank’s interest. The dispositive question as to liability of the bank is: Did FANB, under these circumstances, owe a duty to the Mitchells to disclose the higher price available for their farm? Our answer is: Yes.

FANB and the Mitchells argue two inconsistent theories on the issue of the duty of FANB or its officer (Reed) to tell the Mitchells that a higher price was available. FANB argues (1) that this Court should apply the bank-customer relationship in which FANB doesn’t owe any duty of full disclosure to the customer, and (2) that it and the Mitchells are two parties with adverse interests, the same as any two parties to a business transaction. The Mitchells, on the other hand, argue that the applicable relationship is that of mortgagor-mortgagee in which the mortgagee (FANB) not only owes a duty to the mortgagor (Mitch-ells) to advise them that a higher price is available, but has the duty to make reasonable efforts to obtain the highest price available.

The relationship which FANB advances is that of a bank and its depositor, which generally is not a confidential or fiduciary one. In this instance, a loan has already been closed and the mortgagor-mortgagee relationship exists. Under our case law the mortgagor and mortgagee are in a relationship of trust, and the mortgagee should not be allowed to abuse that relationship as happened in the present case. Federal Land Bank v. Collom, 201 Miss. 266, 28 So.2d 126 (1946); Meyers v. American Oil Co., 192 Miss. 180, 5 So.2d 218 (1941). Even though the relationship of the Mitchells to FANB was adverse so far as payment of the debt was concerned, FANB was under a duty to disclose the facts peculiarly within its knowledge, i. e., the facts pertaining to the sale of the land for $221,-900.

FANB cites Stewart v. Phoenix Nat'l Bank, 49 Ariz. 34, 64 P.2d 101 (1937), for the proposition that a bank owes no duty of full disclosure to a depositor (here the Mitchells are not mere depositors). However, the Arizona court goes on to find that there may be a fiduciary relationship between the bank and its mortgagor due to the character of a bank and their giving of financial advice over the years. The court there accurately notes that banks are seeking people’s trust and confidence and therefore may owe clients a high degree of care. We hold here that FANB at least owed its mortgagors, the Mitchells, a duty of fairness which it violated. FANB through Reed had knowledge that the property which the Mitchells were induced to sell for $187,000 could be sold for much more. FANB’s duty of fairness carried with it the duty to disclose that the land could be sold for $221,900. Breach of this duty by FANB operated to defraud the Mitchells of approximately $35,000, and to that extent FANB is liable. See Strong v. Repide, 213 U.S. 419, 29 S.Ct. 521, 53 L.Ed. 853 (1909).

FANB argues error in the granting and rejection of several jury instructions, and contends that instruction D 1 should have been given. This instruction does not correctly state the law in these circumstances because, even though Clint Reed was acting in his interest, he was within his apparent scope of authority in taking the actions which he took, at least as to the discussions about the loan. FANB also claims that the jury was not properly instructed that to be liable for Clint Reed’s actions, his actions must have been made within the course and scope of his employment; although this was not pointed out in every instruction (as it should have been), the jurors were instructed as to this in plaintiff’s instruction number 1 and defendant’s instruction number 2. As to Mitchells’ instructions on punitive damages, FANB points out correctly that instructions P 3 and P 4 failed to include language that Reed’s acts must have been proven to have been within the course and scope of his employment. While such language should have been included in P 3 and P 4, inasmuch as other instructions contained similar language, the defect is not reversible error because under our rule all instructions are to be read and considered as a whole.

FANB persuasively contends that both the actual and punitive damages awarded were grossly excessive. $100,000 actual damages were awarded — approximately three times the $35,000 proved by specific evidence. The evidence as to interest cost incurred by the Mitchells due to their loss could have been proven specifically but was not. Furthermore, there was no proof as to loss of credit rating other than the testimony of the two Mitchell brothers that they had trouble getting credit, and this is in the face of their testimony that they have negotiated several loans since the time of the sale of their property.

Although punitive damages may properly be awarded against FANB due to the fraudulent acts of its officer or agent, $250,000 is so grossly excessive that the amount is shocking. Not only is the record deficient and unclear as to proof of actual damages above $35,000, no proffer was made of adequate proof of the net worth or financial condition of FANB. Snowden v. Osborne, 269 So.2d 858 (Miss.1972). Absent some proper showing of the net worth or financial condition of FANB, we have no way to measure the correctness of the punitive damage award ($250,000) which on its face seems totally unrealistic upon the record. Accordingly, remand is necessary for retrial on the sole issue of damages: actual and punitive.

AFFIRMED AS TO LIABILITY; REVERSED AND REMANDED FOR RETRIAL OF DAMAGES ONLY.

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


author: SMITH, Presiding Justice,

text:
    In the Matter of the ESTATE of Elizabeth EVANS, Deceased. Ora Mae HARRIS and Hesikiah Garrett, Executors v. Mel SPEARMAN.
    No. 50349.
    Supreme Court of Mississippi.
    May 31, 1978.
    Rehearing Denied July 12, 1978.
    Smith, O’Hare & Atkinson, William E. O’Hare, Cleveland, for appellant.

      Laurence Y. Mellen, Cleveland, for appel-lee.
    Before SMITH, SUGG and BROOM, JJ.
   SMITH, Presiding Justice,

for the Court:

Ora Mae Harris and Hesikiah Garrett, as executors of the will of Elizabeth Evans, deceased, have appealed from a decree of the Chancery Court of the Second Judicial District of Bolivar County under the provisions of which appellee, Mel Spearman, was declared to be the owner of an undivided one-half interest in certain real property ostensibly owned by the testatrix.

In 1921, Elizabeth Evans (then Elizabeth Garrett) had married one Monroe Evans. Six children were born of the marriage, of whom three survive, and there are several grandchildren. In 1953 or 1954 Evans left his family and went to Arkansas where he has continued to reside. There is no claim that these people were ever divorced. Nevertheless, in 1955 Elizabeth Evans ceremonially “married” appellee, Mel Spear-man. In 1958 Elizabeth (Evans) Spearman purchased for $1,800 the house and lot which is now the subject of this litigation. At that time she and Spearman were living together as husband and wife and were so regarded by friends and acquaintances. Elizabeth (Evans) Spearman borrowed $325.00 from her employer, and $1,500 from the Cleveland Federal Savings and Loan Association in order to pay the purchase price. The property was then conveyed to her. The loan documents, notes and deeds of trust, were executed by her and by Spearman, who is described in the body of each of the trust deeds as “her husband” and who acknowledged each of them as “her husband.” These purchase money in-debtednesses were repaid during testatrix’s lifetime.

Afterward, the testatrix and Spearman lived in the house as husband and wife, together with several of her grandchildren, for whom she drew Social Security, until she died.

Upon the death of the testatrix in December of 1974, her will was admitted to probate, the relevant provisions of the will being as follows:

I am now the owner of the East Half of Lot 41 of Nowell and Ross’ Third Addition to the City of Cleveland, Mississippi, conveyed to me as Elizabeth Spearman, but my real name is Elizabeth Evans for I have never been divorced from said Evans and do not live with said Spear-man as his wife, it is my wish and I hereby direct that any real estate that I may own at my death, and to include the property just described, be and I devise the said property to my grandchildren, that is to say:
L. V. Ward, Willie Ruth Ward, Alf Ward, Adeline Ward, May Ella Ward, Willie Lee Bryant and Bruce Bryant or to the survivor of them if any should die before my death.

Some nine months later, Spearman filed in the probate proceedings a pleading which he styled “Contest to Probate Purported Will.” In this document, with his affidavit attached wherein he swore that “the facts and things” as set forth were true and correct as therein stated, he alleged that he was the “lawful husband” of the testatrix, claimed that he had paid for the property and that he had not known that the deed had been made to testatrix. He also claimed to be the owner of the property and of all of the furniture in the house, as well as of her bank account in the amount of $2,284.27. He asked the court to declare him to be the owner of the property under a resulting trust.

He then pled in the “alternative” that he was the lawful husband of the testatrix, that as such he was her sole heir and thus was entitled to all of her property, real and personal. He further asserted that, if the will should be found valid, he renounced it as having made no satisfactory provision for him as husband of the testatrix, as provided by section 91-5-27, Mississippi Code Annotated (1972).

Considerable testimony was given by witnesses for both sides and the sources of income of both parties were testified about in what must be described as general terms. It appears that the testatrix had worked for wages, had drawn Social Security payments for the several grandchildren who lived with her and that also she had these grandchildren working and earning money. She was also a known practicing “faith healer” and as such received payment from her patients or clients for her ministrations. There was also testimony that Spearman had done work and that he had contributed to the family expenses; however, this was, perhaps understandably, lacking in specificity and there is no evidence that Spearman made any payment on the purchase price of the property involved or upon the debts incurred to obtain the purchase money.

Of the several propositions sought to be raised by Spearman in his pleading, including the “alternatives,” the single issue which remained after the chancellor had found from clear and undisputed evidence that the “marriage” between the testatrix and Spearman was void, was Spearman’s claim to ownership of the house and lot under a resulting trust. The chancellor concluded that such a trust had arisen, saying that, in signing the loan instruments, Spearman had obligated himself and, since he was not the testatrix’s lawful husband, there was no presumption that he had intended the property as a gift to the testatrix.

Appellants challenge this ruling on the following assigned ground:

Did the lower court commit manifest error in finding that appellee was the owner of an undivided one-half interest in the real property in question by virtue of a resulting trust?

In answering their own question in the affirmative, appellants cite several of the numerous cases in which this Court has held that evidence, to be sufficient to establish a resulting trust, must be clear, unequivocal, convincing and beyond a reasonable doubt. Conner v. Conner, 238 Miss. 471, 119 So.2d 240 (1960); Stovall v. Stovall, 218 Miss. 364, 67 So.2d 391 (1953); Jordan v. Jordan, 145 Miss. 779, 111 So. 102 (1927); Moore v. Crump, 84 Miss. 612, 37 So. 109 (1904); Logan v. Johnson, 72 Miss. 185, 16 So. 231 (1894).

The evidence in the present case was wholly circumstantial. The chancellor seems to have based his conclusion that a resulting trust had arisen almost solely upon the fact that Spearman, in signing the trust deeds and notes, had become obligated for their payment. However, the indebted-nesses by means of which the money was obtained for the land, were paid during the lifetime of the testatrix and there is no evidence that he paid anything in their discharge. The property was conveyed to the testatrix in July of 1958 and for more than sixteen years no question was raised as to her exclusive ownership by Spearman and it was not until some nine months after she died in December, 1974 that he first did so in these proceedings. These people as husband and wife, made their home in the house situated upon the property and had gone through a marriage ceremony and were thought of in the community as (and Spearman claimed they were) husband and wife. The circumstances are entirely consistent with the fact that the lender required the signature of “her husband” as the property was, ostensibly, a homestead. As stated, there is no evidence of any payment by Spearman upon the purchase money debt, notwithstanding some testimony that he worked and helped the family. On the contrary, there is evidence of payments by Elizabeth Evans Spearman. The proof tending to support the finding of a resulting trust does not meet the standard required under the circumstances.

In Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955), this Court said:

‘A resulting trust arises, if at all, in the same transaction in which the legal title passes, at the time that legal title passes, on consideration advanced before or at that time, and not from matters thereafter occurring or on consideration thereafter advanced unless occurring or advanced immediately thereafter so as to be in fact a part of the same transaction. The fundamental reason for the rule is that the resulting trust is one implied by law from the circumstances of consideration at the time of the transaction’, although the trust is not affected by the failure of the person purchasing the land to obtain a valid deed or title thereto at the date of the transaction, but the trust attaches when the title is obtained subsequently. 54 Am.Jur., p. 159, Sec. 204; Moore v. Moore, 74 Miss. 59, 19 So. 953; Bush v. Bush, 134 Miss. 523, 99 So. 151. In the Moore case, Judge Whitfield, speaking for the Court, quoted from the old case of Rogers v. Murray, 3 Paige, N.Y., [390, at page] 397, where it is said: ‘After the legal title has once passed to the grantee by the deed, it is impossible to raise a resulting trust, so as to divest the legal estate, by the subsequent application of the funds of a third person to the improvement of the property, or to satisfy the unpaid purchase money.’ Windham v. Windham, 218 Miss. 547, 67 So.2d 467, 470.
(226 Miss. at 171-172, 84 So.2d at 150-151).

See also Stone v. Sample, 216 Miss. 287, 62 So.2d 307 (1953).

Also, in Bush v. Bush, 134 Miss. 523, 99 So. 151 (1924) it was held:

Cases involving questions of resulting trusts have often been before this court. The following principles are recognized and declared by this court: If one buys land in the name of another and pays the consideration therefor, the land will be held by the grantee in trust for the benefit of him who advances the purchase money; and if there has been only a partial advance of the purchase money a trust will result pro tanto. The foundation of the trust in such cases is that the property really belongs to him whose funds have paid for it. But the facts creating the trust must exist at the time of the conveyance; for it is the money which has gone to the vendor as an inducement to the conveyance that creates the equity called a resulting trust. After the title has been conveyed the application of the funds of another to pay the purchase money for the land creates no trust in favor of such other. The trust arises, if at all, at the time of the conveyance. McCarroll v. Alexander, 48 Miss. 128; Miazza v. Yerger, 53 Miss. 135; Brooks v. Shelton, 54 Miss. 353; Thomas v. Thomas, 62 Miss. 531; Chiles v. Gallagher, 67 Miss. 413, 7 So. 208; Barton v. Magruder, 69 Miss. 462, 13 So. 839; Logan v. Johnson, 72 Miss. 185, 16 So. 231; Moore v. Moore, 74 Miss. 59, 19 So. 953; Shrader v. Shrader, 119 Miss. 526, 81 So. 227.

See also Stevens v. Hill, 236 So.2d 430 (Miss.1970).

While appellee did sign the promissory notes and deeds of trust, there is no evidence in the record before this Court that appellee paid anything on the purchase price. The key factor in the present case is that, at the time this case was tried, both of the loans made contemporaneously with the conveyance had been completely repaid and there is no evidence that Spearman contributed anything to their repayment.

In Dalsoren v. Olsen, 247 Miss. 778, 157 So.2d 60 (1963) this Court held:

The record title owner of real estate is presumed to be the legal and equitable owner of the same. Jordan v. Jordan, 145 Miss. 779, 111 So. 102; Jones v. Jones, 226 Miss. 378, 84 So.2d 414; and 59 C.J.S. Mortgages, § 48a, p. 82. See also Conner v. Conner, 238 Miss. 471, 119 So.2d 240. These authorities sustain the view that the burden of proof is upon the person claiming the benefit of a resulting trust to prove by clear, strong, unequivocal and unmistakable evidence that the alleged beneficiary of the trust has paid for the property beyond any reasonable doubt.
(247 Miss. at 783, 157 So.2d at 62).

It must be borne in mind that the burden of proof to establish a resulting trust rested upon Spearman and not upon appellants to establish that testatrix, to whom the property had been conveyed, was the owner. Spearman failed to meet that burden.

We have concluded from the evidence in the record, therefore, that the decree declaring a resulting trust in favor of Spear-man was manifestly wrong. Not only did the evidence offered to support that view fail to rise to the degree required under the rule stated in the above cited authorities but, under all the facts and circumstances of the case as reflected by the record, the evidence tending to establish that the property belonged exclusively to the testatrix preponderated.

REVERSED AND DECREE HERE FOR APPELLANTS.

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


text:
    LONGLEAF FOREST PRODUCTS, INC., North Pacific Lumber Company and John O. Moore v. J. Jolly CROSBY.
    No. 50374.
    Supreme Court of Mississippi.
    June 7, 1978.
    Rehearing Denied July 12, 1978.
    Gray, Montague, Jackson & Pittman, James C. Pittman, Jr., Hattiesburg, for appellants.
    Lowell W. Tew, E. K. Collins, Laurel, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before SMITH, P. J., and WALKER and COFER, JJ.

AFFIRMED.


text:
    Murphy C. CAMERON v. Annie Mae WILSON et al.
    No. 50325.
    Supreme Court of Mississippi.
    June 14, 1978.
    Rehearing Denied July 12, 1978.
    Mauldin & Sneed, Pontotoc, S. H. Long, Tupelo, for appellant.
    Boudie A. Jaggers, Pontotoc, for appel-lees.
   Appeal from Chancery Court, Pontotoc County; Fred P. Wright, Chancellor.

Before PATTERSON, C. J., and LEE and BOWLING, JJ.

Affirmed.


text:
    Hugh R. COLEMAN v. LEE COUNTY BOARD OF EDUCATION and Leroy E. Belk, County Superintendent of Education.
    No. 49942.
    Supreme Court of Mississippi.
    June 14, 1978.
    Rehearing Denied July 12, 1978.
    Farese, Farese & Farese, Anthony T. Farese, Ashland, for appellant.
    Carnathan & Davidson, Glen H. Davidson, Tupelo, for appellees.
   Appeal from Chancery Court, Lee County; James E. Bost, Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

Affirmed.

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


author: W. W. BROWN, Commissioner,

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. Tommie Joe FAIRLEY.
    No. 50046.
    Supreme Court of Mississippi.
    June 14, 1978.

      Gray, Montague, Jackson & Pittman, James C. Pittman, Jr., Hattiesburg, for appellant.
    W. S. Murphy, Lucedale, for appellee.
    Before PATTERSON, C. J., BROOM and BOWLING, JJ., and BROWN, Commissioner.
   W. W. BROWN, Commissioner,

for the Court:

This replevin suit was filed by appellant, General Motors Acceptance Corporation (GMAC) against appellee Tommie Joe Fair-ley (Fairley) in the Circuit Court of Greene County. Fairley answered, and counterclaimed, alleging damages by virtue of being falsely charged with wrongful detention in GMAC’s replevin suit. GMAC demurred to Fairley’s counterclaim and after the demurrer was overruled, a jury trial resulted in five thousand dollar verdict and judgment in favor of Fairley on his counterclaim. We reverse.

The dispositive issue is: May a defendant to a replevin suit who disclaims possession of the property sought, counterclaim for damages to his reputation, business, and for mental anguish caused by the replevin?

In October of 1973, Thomas Mizelle purchased an auto from U. J. Chevrolet Company by an installment sales contract which was duly assigned to GMAC. Mizelle failed to make timely monthly payments on several occasions and late payments were made by his grandson, Tommie Joe Fairley. Mi-zelle resided part-time with Fairley and both of them used the auto. GMAC had actual notice that some of the payments were made by Fairley. When default occurred on three payments extending from January 7 through March 7, 1976, GMAC filed a replevin action on March 26,1976, to recover the auto that was parked on the property of Tommie Joe Fairley.

Although Fairley contended he never objected to GMAC taking possession of the auto, the record shows that on January 28, 1976, Fairley requested time to make payments by the first of February, 1976, which was granted but only one of the two payments due was made. Thereafter, GMAC representatives called by Fairley’s home five times from February 4, 1976 through March 11, 1976; left notices to call or were informed by Fairley’s wife to see Fairley about repossessing the auto.

After the replevin action was brought and the writ served on Fairley, he contemplated bonding the auto but did not after the sheriff had prepared him a bond. Fair-ley thereafter answered and admitted no ownership in the auto and filed a disclaimer, but counterclaimed in a tort action for mental anguish or civil abuse of process, etc. The plaintiff, GMAC, timely demurred to the counterclaim, which demurrer was overruled; judgment was entered granting GMAC possession of the auto but the matter of the counterclaim was set down for trial which resulted in a jury verdict in the principal sum of five thousand dollars.

Fairley urges that Mississippi Code Annotated, Section 11-7-36 (Supp.1977) authorizes any person to now plead in his declaration both contract and tort, and, that Mississippi Code Annotated, Section 11-7-59 (1972) abolished pleas in circuit court. Therefore, argument is made that a counterclaim is authorized in replevin as provided by Mississippi Code Annotated, Section 11-7-69 (1972) when construed with Mississippi Code Annotated, Section 11-37-157 (Supp.1977).

Counterclaim was not known to the Common Law, or to early English and American equity practice. It is a code term of modern origin, and owes its existence to statutory law. 20 Am.Jur.2d, Counterclaim § 19 (1973).

Although replevin was recognized in early common law, its use has been controlled and regulated by statute for several hundred years. The first statute in Mississippi providing for replevin in all cases of wrongful detention of personal property was enacted February 14, 1842, and appears in Hutchinson’s Code, ch. 56, art. 11, p. 817 (1848). Since that time replevin has been continuously a statutory proceeding in this state. Although the plea of “not guilty” was abolished and the now repealed Mississippi Code Annotated Section 11-37-37 (1972) provided “the defendant may plead as provided by law,” this Court has continuously held that replevin in Mississippi is a purely statutory proceeding. Rawles v. Ogden, 284 So.2d 532 (Miss.1973).

Replevin is a proceeding by which the owner or one who has a general or special property in the chattel taken or detained seeks to recover possession of that specific chattel, the recovery of damages being only an incident thereto. 66 Am.Jur.2d, Replevin, § 2 (1973).

The recently enacted replevin statutes, Mississippi Code Annotated, Sections 11-37-101 through 11-37-157, inclusive, (Supp.1977), still provide for an immediate remedy where a chattel is unlawfully held or detained to gain possession thereof, in term time or vacation after five days notice. Although Mississippi Code Annotated, Section 11-37-127 (Supp.1977) authorizes a judgment for the value of the property if the property cannot be found, only the recovery of the property or value plus any statutory damages as therein provided is allowed. If the judgment be for the defendant, then Mississippi Code Annotated, Section 11-37-129 (Supp.1977) sets the statutory limits of his recovery.

After a careful consideration of the office of replevin, we have reached the conclusion that the Laws of 1975, ch. 508, do not permit a defendant to file a counterclaim or recoupment except for the specific statutory damages. A replevin action is a possessory action for specific property and not a suit for monetary damages. No provision is made under the above law for a judgment of money, except for the wrongful taking, detention, value of the specific property, or damages for wrongful suing out of the writ. This Court held in the case of Carruth v. Easterling, 247 Miss. 364, 150 So.2d 852 (1963):

Such a plea may be made in addition to the traditional defense that replevin does not lie for impounded or distrained animals if the proceeding is regular. Cobbey on Replevin, 2d Ed. § 348, p. 174. Facts amounting to a recoupment may also be alleged in the answer, under the foregoing amended statute, as an affirmative defense to the plaintiff’s right of possession or interest in the property, but facts may not be pleaded in the answer which amount to a counterclaim to set off or establish unrelated debts or demands. (Emphasis added). 150 So.2d at 858.

The auto in this case was in the constructive possession of the defendant Fairley, and although he disclaimed any interest therein the writ of replevin was proper to remove the chattel from his land. Therefore, the writ was not wrongfully sued out and the facts of the counterclaim show no damages provided by statute. A motion to strike the counterclaim would have been the more appropriate procedure, but the demurrer went to the face of the pleadings and should have been sustained. Since both counterclaim and replevin are statutory proceedings this Court will not imply, engraft or enlarge the statutes to embrace a proceeding heretofore not recognized in this state without specific legislative authorization.

The judgment for the counterclaimant is set aside and held for naught and the counterclaim is dismissed without prejudice to the counterclaimant to bring suit in a separate action if merited.

REVERSED AND RENDERED.

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

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


text:
    I. V. PERKINS v. STATE of Mississippi.
    No. 50516.
    Supreme Court of Mississippi.
    June 14, 1978.
    Rehearing Denied July 12, 1978.
    John W. Prewitt, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, WALKER and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

I. V. Perkins, indicted and tried upon a charge of murder, was convicted of manslaughter in the Circuit Court of Warren County and sentenced to six years imprisonment. He has appealed, assigning several grounds for reversal.

It is first argued that the evidence was not sufficient to support the verdict and that the verdict is contrary to law.

There were certain conflicts in the testimony of witnesses given at the trial, but that version of the circumstances relating to the homicide which supports the verdict and is based upon evidence is substantially as follows:

In the early morning hours of December 5, 1976, one Ronnie Warren was shot and killed by appellant at the El Morocco Club in Vicksburg. A fight had occurred earlier between Perkins’ daughter and one Barbara Griffin at the Dewdrop Club, an establishment located across the street from the El Morocco. The women had fought over Warren. In the fight Perkins’ daughter was bested and, going home, she encountered her father who sought unsuccessfully to find out from her what had happened. Being unable to learn anything from his daughter he went on to the El Morocco Club for the purpose of finding out from Warren what trouble his daughter had been into. Entering the El Morocco Perkins observed Warren at the cigarette machine talking to one Davis. Warren, when asked by Perkins if he had been dating Perkins’ daughter, replied in the affirmative. At this, Perkins told Warren not to “say another damn word.” He drew a twenty-five caliber pistol from his pocket, which he pointed at Warren and attempted to fire it. The pistol jammed. Thereupon Perkins ejected the shell, prepared to attempt again to fire and Davis, standing by Warren, pushed Perkins back and Warren seized Perkins’ arm, holding Perkins down on a table. Perkins, struggling to free himself, managed to fire three shots, one of which struck Warren in the chest, mortally wounding him. When Warren fell to the floor, Perkins went outside but returned in a few minutes and when someone asked who had shot Warren replied that he had shot the “motherfucker.”

The defense, in essence, was to the effect that Perkins had sought Warren merely to ask what had happened to Perkins’ daughter, and that when Warren had told him that she had been fighting with Barbara Griffin, Perkins had turned to leave but that Warren and Davis had grabbed him and pushed him down on the table and held him there. Perkins said that he had a “heart condition” and that, while being held on the table, began “gasping and choking.” It was then, Perkins said, that he got his pistol out of his pocket and began firing, his only purpose having been, he said, to “get them off of me.”

Afterward, Perkins turned himself in to the local authorities and surrendered the pistol to them. Ten members of the jury which found Perkins guilty of manslaughter recommended mercy and the trial judge sentenced him to six years imprisonment.

Mississippi Code Annotated section 97-3-35 (1972) states:

The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

In Hartfield v. State, 176 Miss. 776, 170 So. 531 (1936), this Court has stated:

. The true rule is expressed in an instruction approved by this court in a late case, Ransom v. State, 149 Miss. 262, 267, 115 So. 208, 210, that instruction being in the following words:
‘The court instructs the jury, for the state, that, to make a homicide justifiable on the grounds of self-defense, the danger to the slayer must be either actual, present, and urgent, or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to kill him, or to do him some great bodily harm, and, in addition to this, that there was imminent danger of such design being accomplished; and hence mere fear, apprehension, or belief, however sincerely entertained by one person, that another designs to take his life or to do him some great bodily harm, and yet this will not justify the former in taking the life of the latter party. A party may have an apprehension that his life is in danger, and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the jury may determine the reasonableness of the ground upon which he acted.’
It is not required under this established rule that the accused shall know that the danger is actual and is immediate and imminent; nor, on the other hand, is it sufficient to a complete defense that immediate and imminent danger would be apprehended only by a confirmed coward, or by one who, for the time being, is unduly frightened out of his wits. The apprehension of such danger must be real and such as would or should, under the circumstances, be entertained by a reasonably well-disposed man of average prudence; and whether the accused has, in a particular case, measured up to that standard of conduct is a question to be submitted to, and decided by, the jury, as all such questions are submitted to the jury in cases of alleged wrong, whether criminal or civil. And, when a charge of murder is submitted to the jury and the jury is of the opinion from all the evidence that the accused ‘killed the deceased without malice, under the bona fide belief, but without reasonable cause therefor, that it was necessary for him to do so in order to prevent the deceased from inflicting death or great bodily harm upon him, then the jury might, under proper instructions, be warranted in returning a verdict of manslaughter.’ O’Banner v. State (Miss.) 169 So. 845, citing Williams v. State, 127 Miss. 851, 90 So. 705. . . . (176 Miss. at 783-784, 170 So. at 532-533)

See also: Rush v. State, 278 So.2d 456 (Miss.1973); Stennis v. State, 234 So.2d 611 (Miss.1970); Yarber v. State, 230 Miss. 746, 93 So.2d 851 (1957); 40 C.J.S. Homicide § 126b(1)(b) at pages 1005-1006 (1944).

The evidence adduced at the trial was ample to support the verdict of guilty of manslaughter.

It is next argued that it was error to grant at the request of the prosecution an instruction relating to the crime of murder and which dealt exclusively with the effect of premeditation on the part of the accused where the accused arms himself with a deadly weapon with the deliberate design to provoke a difficulty with his adversary in order to use the weapon and slay him. The jury’s verdict of manslaughter had the effect of finding Perkins not guilty of murder and obviates the necessity of discussing in detail the alleged faults which appellant argues that the instruction contained.

In Bragg v. State, 210 So.2d 652 (Miss.1968), this Court said:

[T]hat a defendant who has been convicted of manslaughter may not complain at the giving of a murder instruction. Boyd v. State, 253 Miss. 98, 175 So.2d 132 (1965); Pickert v. State, 234 Miss. 513, 106 So.2d 681 (1958); Rogers v. State, 222 Miss. 609, 76 So.2d 702 (1955); Richey v. State, 220 Miss. 790, 72 So.2d 152 (1954); Denham v. State, 218 Miss. 423, 67 So.2d 445 (1953); Trask v. State, 216 Miss. 557, 62 So.2d 888 (1953); Knight v. State, 215 Miss. 251, 60 So.2d 638 (1952); and cases cited therein. (210 So.2d at 653).

Appellant criticizes and assigns as error the action of the trial court in declining to grant several instructions he requested and in granting others requested by the State to which he objected. We have examined all of the instructions given by the trial court to the jury and have concluded that, when read together, they correctly, adequately and fairly apprised the jury of the law in the case.

The record does not reflect that any prejudicial error was committed in the trial and the conviction appealed from should be affirmed.

AFFIRMED.

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


author: McCALEB, Justice.

text:
    213 La. 956
    DEPARTMENT OF WILD LIFE & FISHERIES v. THE TRAWLER BALTIMORE NO. 218839.
    No. 38883.
    Supreme Court of Louisiana.
    June 1, 1948.
    Harry P. Gamble, Sr., of New Orleans, and Leonard Greenburg, of Houma, for plaintiff-appellant.
    Ellender & Wright, of Houma, and Harvey A. Peltier, of Thibodaux, for defendant-appellee.
   McCALEB, Justice.

The Department of Wild Life and Fisheries, having seized the vessel Baltimore No. 218839 for engaging in shrimp trawling during the closed season within the "coastal or inside waters of the State in violation of Act No. 143 of 1942-, as amended by Act No. 78 of 1946, instituted this proceeding in rem in the Seventeenth Judicial District Court for her forfeiture under the provisions of Section 17 of the law. Alleging that the vessel was owned by one Horace Authement and that she was being operated at the time of the asserted' violations of law by one Haze Porche, it prayed that they, as owner and operator, respectively, be cited to appear; that, after due proceedings, the court decree a forfeiture of the vessel or, alternatively, for her suspension. from operation in shrimp fisheries during the open season and further that, if the offense charged be proved to have been committed without the knowledge and consent of her owner that Porche, her operator, be enjoined and suspended from engaging in shrimp fishing for a period of not less than 60 days nor more than six months and, in addition thereto, be fined and imprisoned, or both, within the discretion of the court.

Upon the filing of the petition, the district judge issued an order for the bonding of the vessel by any person in interest upon the execution of a forthcoming bond in the sum of $500. In due course, Horace Authement appeared, claimed ownership and bonded the vessel. He also filed an exception of no right or cause of action to the petition of the Department, contending (1) that an independent forfeiture proceeding cannot be maintained under Section 17 of Act No. 143 of 1942, as amended, but that the section contemplates only the forfeiture of vessels and other property in connection with a conviction of the operator of the vessel for violating the law and (2) that the action in rem cannot lie as 't is not accompanied by a writ of sequestration or provisional seizure issued by the court.

After a hearing on this exception, the district judge, believing that the first ground thereof was well taken, sustained it and dismissed the suit. Wherefore this appeal.

Section 17 of the Act, as amended, insofar as pertinent to a discussion of the first point on which the exception of no cause of action is pitched, reads as follows:

“S'ection 17. (As amended and re-enacted by Act 78 of 1946). That any person violating any provisions of this Act, where fine or imprisonment has not been otherwise provided, shall be guilty of a misdemeanor and shall on conviction thereof be fined not less than Twenty-five Dollars ($25.00) or not more than One Hundred ($100.00) Dollars for the first offense, nor less than One Hundred ($100.00) Dollars nor more than Two Hundred ($200.00) Dollars for the second offense and for the third offense the fine shall not be less than One Hundred ($100.00) Dollars nor .more than Two Hundred ($200.00) Dollars and in addition the license under which operations are being conducted shall be revoked. For each offense the courts may impose a sentence, in the parish jail for not less than five (5) days nor more than thirty (30) days, or may impose both fine and imprisonment at the discretion of the court for each offense; and in addition thereto, and in the same proceeding the boats, seines, trawls, vehicles or other devices used in such violation, may be forfeited by order of the court, and delivered to the Department of Wild Life and Fisheries for disposition at discretion.
“Vessels, airplanes, vehicles or other form of transport used in the illegal taking or transportation of salt water shrimp shall be seized and taken into possession by the Department of Wild Life and Fisheries which is authorized to permit release of said seizure upon the owner, or person in charge thereof, furnishing a forthcoming bond with good and sufficient surety in an amount not to exceed Twenty-five Hunderd ($2,500.00) Dollars as fixed and approved by the Judge of the District Court having jurisdiction.
“The vessel, airplane, vehicle, or other thing (all hereinafter designated the thing) shall be liable to forfeiture upon proceedings being instituted to that end by the District Attorney having jurisdiction or the Department of Wild Life and Fisheries through its authorized attorney. The District Court is authorized to decree the forfeiture of such thing which shall be sold at public auction by the Sheriff, without the necessity of appraisement, but after notice of seizure and advertisement as prescribed by law for the sale of movable property seized under a writ of fieri facias. The proceeds of such sale, less -the cost of seizure, keeping and sale, shall be paid into the State Treasury to the credit of the Department of Wild Life and Fisheries; $ * * >1

The District Judge was of the opinion that the forfeiture proceedings provided for against vessels, .airplanes, etc. used in the illegal taking or transportation of salt water shrimp were inseparably connected with a criminal proceeding and that the Legislature contemplated that the law violator be convicted as a condition precedent to the maintenance of a forfeiture.

We think that he erred. The first paragraph of Section 17, supra, in prescribing the fine and imprisonment of any person violating the provisions of the Act, declares that “in addition thereto, and in the same proceeding the boats, seines, trawls, vehicles or other devices used in such violation, may be forfeited by order of the court * * The secon¿ paragraph, which we consider to be wholly independent of the provisions of the first paragraph, states, in substance, that “Vessels, airplanes, vehicles, or other form of transport used in the illegal taking or transportation of salt water shrimp shall be seized * * * by the Department * * And the third paragraph continues that “the vessel * * * or other thing shall be liable to forfeiture upon proceedings being instituted * * Thus, the first paragraph deals chiefly with fines against and imprisonment of persons violating the law, coupled with a grant to the court, in the event of conviction, to confiscate the devices (boats, seines, trawls, vehicles) used by the law violator. Paragraphs two and three prescribe for the seizure and forfeiture of vessels and vehicles illegally used in the transportation of salt water shrimp; provides for notice to the owner and judgment of forfeiture or suspension of the vessel in certain cases.

That the forfeiture proceedings provided for by the second and third paragraphs of Section 17 of the Act as presently amended are not in anywise conditioned upon previous criminal action will be readily gleaned from an examination of the prior shrimp legislation of this State. The original law enacted for the protection of salt water shrimp, Act No. 245 of 1910, made no provision for independent forfeiture proceedings against vessels or other vehicles used in the unlawful taking or transportation of the shrimp. Its penal provisions were practically identical (respecting summary forfeiture of boats, seines, etc. at the time of conviction) with those of the first paragraph of Section 17 of the present law. Provisions authorizing separate forfeiture proceedings were initially introduced in the law of 1926 and are found in Section 19 of Act No. 103 of that year. The first paragraph of that section refers to criminal actions and summary forfeitures and is substantially a reenactment of the penal clauses contained in the prior laws. The second paragraph, however, similar to the present law, declares that “Vessels, their tackle and apparatus, used in illegal taking of salt water shrimp from the waters of the State * * * shall be seized and taken into possession by the officers or inspectors of the Department of Conservation * * *. Such vessel shall be liable to forfeiture upon proceedings being instituted to that end by the District Attorney having jurisdiction * * *.”

These provisions, with minor variations, were repeated in Section 17 of Act No. 143 of 1942 and again in the amendment by Act No. 78 of 1946 which added certain clauses ■to Section 17, modifying the stringent forfeiture provisions (by permitting the suspension of a vessel from the shrimp trade where it appears that an outright forfeiture would be unjust) providing for suspension of the operator of the vessel in forfeiture cases and describing in greater detail the procedure to be followed.

The second ground of the exception of no cause of- action is that it was necessary to the validity of the forfeiture proceedings for the Department to have prayed for and obtained an order of provisional seizure or sequestration of the vessel. This contention is founded on the provisions of the fifth paragraph of Section 17 of the Act, declaring that: “Proceedings herein shall be in rem insofar as not inconsistent with the provisions of this section; and the in rem proceedings provided for in Act 381 of the Legislature of 1938 shall be followed so long as existent when not inconsistent with the foregoing * *

It is said that, since Section 4 of Act No. 381 of 1938 requires that the claimant of a lien and privilege pray for the seizure and sale of the vessel, such a prayer and order for a provisional seizure is essential in forfeitures authorized by 'Section 17 of Act No. 143 of 1942, as amended.

The point is not tenable. The Department does not claim a lien on the vessel and it does not desire the Court to issue process for its seizure. Provisional seizure by the Court is wholly unnecessary in a case oí this kind for the reason that seizure has already been effected by the Department in accordance with the second paragraph of Section 17 of the statute.

The provisions of the fifth paragraph relied upon by claimant, which declare that the in rem proceedings shall be in accordance with those provided for by Act No. 381 of 1938, apply only in case there is no inconsistency between the provisions of Section 17 and those of the 1938 Act. Obviously, the claim for a lien coupled with a prayer for a provisional seizure of the vessel is utterly discordant with the in rem proceeding specifically provided for by the second and third paragraphs of Section 17 which authorize a seizure by the Department and the bonding thereof by the claimant furnishing a recognizance fixed by the court in the forfeiture proceedings. Seizure or sequestration of the vessel by the court occurs only in the event it is ordered forfeited at which time it is turned over to the Sheriff for sale at public auction.

The judgment appealed from is annulled and set aside; the exception of no right or cause of action is overruled and the case is remanded to the Seventeenth Judicial District Court for further proceedings according to law and consistent with the views herein expressed. The costs of this appeal are to be paid by Horace Authement; other costs are to await further proceedings.

O'NIELL, C. J., absent.

       Section 11 of Act No. 245 of 1910 provided a penalty of fine and imprisonment for violating the law “and in addition thereto the boats, seines or other devices used in such violation may be confiscated by order of the court.” This Act was amended in matters not pertaining to penalties or seizure by Acts Nos. 168 of 1912, 59 of 1914 and 193 of 1916. Act No. 86 of 1918 carries tho same penalty confiscation clause; also Act No. 68 of 1920 and Act No. 140 of 1924.

       gee also Act No. 61 of 193© relating to severance tax and Act No. 50 of 1932, another act on the same subject, which contains the same language with relation to seizure and confiscation as Act No. 103 of 1926.

       This Act has for its purpose the creation of a lien and privilege on steamships, tugs, barges, water craft and vessels of every kind to secure payment for injury, loss or damage occasioned within the territorial jurisdiction of Louisiana to persons or property by such craft resulting from the torts of those in charge of the craft. It authorizes and fixes the venue of proceedings in rem against the offending craft and provides the procedure to effect recovery and to enforce a lien and privilege.


text:
    213 La. 965
    DEPARTMENT OF WILD LIFE & FISHERIES v. Lugger The TIMOTHY and Lugger The SIBERIA NO. 20E292
    No. 38884.
    Supreme Court of Louisiana.
    June 1, 1948.
    Harry P. Gamble, Sr., of New Orleans (Leonard Greenburg, of Houma, of counsel), for plaintiff-appellant.
    Ellender & Wright, of Houma, and Harvey A. Peltier, of Thibadeaux, for defendant-appellee.
   McCALEB, Justice.

This case was consolidated for argument with case No. 38,883 of our docket entitled Department of Wild Life and Fisheries v. The Baltimore No. 218839, La.Sup., 36 So. 2d 1 this day decided and involves the identical question presented therein.

For the reasons there assigned, the judgment herein is annulled and set aside, the exception of no right or cause of action is overruled and the cause is remanded to the Seventeenth Judicial District Court for further proceedings in accordance with law and consistent with the views expressed in our opinion in case No. 38,883 of our docket. The costs of this appeal are to be paid by claimant, R. J. Boudreaux; other costs to await further proceedings.


author: FOURNET, Justice.

text:
    213 La. 966
    STATE ex rel. HOPE et al. v. HICKEY, Recorder of Mortgages.
    No. 37825.
    Supreme Court of Louisiana.
    June 1, 1948.
    Benjamin Y. Wolf, of New Orleans, for defendant and appellant.
    Kehl & Cuquet, of New Orleans, for plaintiffs and appellees.
   FOURNET, Justice.

The Recorder of Mortgages for the Parish'of Orleans prosecutes this appeal from a judgment ordering him to cancel and erase from the records of his office a certain mortgage and vendor’s lien upon the petition of the relators, Mr. and Mrs. Nick Parta, wherein they alleged that the note described in the mortgage, though paid in full, had been either lost or destroyed.

Since the Recorder of Mortgages is liable for damages for the cancellation of a mortgage without proper evidence of the payment or cancellation of the note or other evidence of debt for which it was given as security should the note later turn out to be in the hands of a bona fide holder in good faith, he is clearly within his right in' exacting the posting of an indemnity bond when the one seeking such cancellation fails to produce the note or other obligation. It is only when the recorder is satisfied that the note or other obligation secured by the mortgage sought to be can-celled cannot possibly find its way into the hands of third persons before maturity and in good faith, that is, when these are shown to have been destroyed or lost by the maker after their return to him by the record owner following due payment thereof in accordance with their tenor, that he need not demand the- posting of such an indemnity bond. See, Rodd v. Recorder of Mortgages, 133 La. 301, 62 So. 933; Lacoste v. Hickey, 203 La. 794, 14 So.2d 639.

In the instant case • the recorder only appeared in the case during the trial to request verbally through his attorney that an indemnity bond be posted for his protection against the possibility that the note which this mortgage secured might be in the hands of innocent third parties when it appeared that the note, in the amount of $2,100, was issued on December 3, 1942, according to the mortgage and could have been paid at the rate of $17 a month and the testimony adduced on the trial, contrary ito the basic allegation of the petition that the note had been lost or destroyed, tended to prove that the note had never, in fact, been issued. This request was denied by the trial judge in ordering the cancellation of the mortgage, he being of the opinion that the recorder would be taking no chance in cancelling the mortgage.

Under the peculiar facts here, we do not feel that the trial judge was justified in ordering the cancellation of this mortgage without exacting the indemnity bond sought from the relators by the recorder. While we have no doubt the trial judge’s appraisal of the honesty and integrity of the attorney and notary before whom this act of mortgage was passed (and who testified to the effect that he had never issued the note as stipulated in the mortgage) is correct, we feel that for us to compel the recorder to cancel the mortgage in this case without adequate security might set a precedent that, in the future, could be availed of by individuals who do not measure up to the high standards attributed to the attorney here.

For the reasons assigned, the judgment appealed from is annulled and set aside and the case is ordered dismissed.

O’NIELL, C. J., absent.


author: HAMITER, Justice.

text:
    213 La. 970
    STATE v. JOHNSON.
    No. 38716.
    Supreme Court of Louisiana.
    June 1, 1948.
    Lessley P. Gardiner, of Opelousas, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Seth Lewis, Dist. Atty., of Opelousas, for appellee.
   HAMITER, Justice.

Eldrege Johnson is appealing from his conviction and sentence for the crime of aggravated battery, the indictment under which he was tried (and found guilty by a jury of five) having charged that on or about November 21, 1946, he “committed a battery with a dangerous weapon upon Daniel Frey.” The appeal presents for our consideration a single bill of exceptions reserved to the overruling of defendant’s objection to a question propounded by the district attorney to Mrs. Sadie Soileau, a witness for the state.

Mrs. Soileau, who was a neighbor of the accused, had testified that about five-thirty o’clock of the afternoon of November 21, 1946 (according to the judge’s per curiam this was immediately after the commission of the crime), while walking past the house of defendant to reach her mail box located nearby, she noticed some blood in the lane; and that on her return she went inside the house and talked with him. Then she was asked: “What, if anything, was said by Johnson to you at that time when you asked him as you stated you did, where the blood had come from ?” At this point defense counsel announced: “Object to the question and the answer thereto on the grounds that it is inadmissible as being irrelevant and immaterial and forms no part of the transaction, and is no part of the res gestae.” The court overruled the objection and the witness answered: “I asked him what has happened. He looked at me and said, ‘The blood you see, that’s German blood.’ And I looked at him and I told him I said, ‘Maybe you hurt Adolph’s kid.’ And he said, ‘Yes.’ ”

We need not determine whether the declaration of the accused, as recited by the witness, constituted a part of the res gestae; it was admissible, in our opinion, for another reason. From other testimony incorporated in the bill of exceptions and from the trial court’s per curiam, we find that “Adolph’s kid” has reference to the prosecuting witness, Daniel Frey, who is of German extraction. This being true, the declaration in question, uttered immediately after the crime’s commission, was relevant and material to show guilty knowledge and criminal intent.

“When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent * * Louisiana Code of Criminal Procedure, Article 446. And it can not be denied that an essential ingredient of the offense of aggravated battery is intent. Louisiana Criminal Code, Act No. 43 of 1942, Articles 33 and 34.

Further, as stated in Marr’s Criminal Jurisprudence, Second Edition, Volume 2, Section 549, “The acts and conduct of a party at or about the time when he is charged to have committed a crime are receivable as evidence of a guilty mind, and while in weighing such evidence, ordinary caution is required, such inferences are to be drawn from them as experience indicates are warranted.” See also 22 Corpus Juris Secundum, verbo Criminal Law, § 730; State v. Posey, 137 La. 871, 69 So. 494.

For the reasons assigned the conviction and sentence are affirmed.


text:
    213 La. 974
    STATE v. WAGNER et al.
    No. 38799.
    Supreme Court of Louisiana.
    June 1, 1948.
    Saal & Blackwell, of Covington, for appellants.
    Fred S. LeBlanc, Atty. Gen., Michael E. Culligan, Asst. Atty. Gen., and James T. Burns, Dist. Atty., of Covington, for ap-pellee.
   McCALEB, Justice.

Appellants, Melville Wagner and Silas McKain, together with one Harold Edwards, were charged with simple burglary of a service station located in Mandeville, Louisiana. Edwards pleaded guilty and was sentenced to imprisonment in the State Penitentiary at hard labor for three years. Wagner and McKain were found guilty after a trial at which they were represented by an experienced attorney. Subsequent to their conviction, but before sentence, the attorney withdrew from the case and their present counsel were employed. As soon as they were retained, counsel made inquiry relative to the reservation by appellants’ former attorney of bills of exception as the testimony given at the trial had not been reported by a stenographer and the minutes of the court failed to reveal the reservation of a bill. Upon being informed by the attorney that he had taken one bill (which was denied by the minute clerk), counsel applied for a new trial alleging that numerous prejudicial errors were committed at the hearing and that, therefore, the verdict of the jury should be set aside.

On the hearing of the motion for a new trial, the judge permitted evidence to be taken in order that counsel might prove, if they could, that a bill of exception had been taken at the'trial although he, the-judge, was of the belief that no exception had been reserved to any of his rulings. Counsel thereupon called to the stand appellants’ former attorney who stated that he knew of only one instance during the trial when he objected to a ruling of the court and that, in that instance, he said “Note a Bill.” On cross-examination, after being questioned in detail by the district attorney, he stated that it was his recollection that he objected to the testimony of certain police officers, who had stated that appellants had been identified by their co-defendant, Edwards; that the judge overruled his objection on the ground that appellants were present when the identification was made and that it was at that time “I think I then said ‘Reserve a Bill’ or ‘Note a Bill’, or ‘Bill reserved’.” And, upon further questioning by the Court, the attorney admitted that he could not say whether he had spoken audibly enough for the judge to hear him.

In support of this evidence, counsel produced two attorneys who stated that they were present in the courtroom at the time of the hearing and that it is their impression that appellants’ attorney reserved or noted a bill during the proceedings.

Opposed to this testimony is that of the minute clerk, Mrs. Muriel Richardson, who denies that the attorney for appellants reserved or noted a bill of exception during the trial. She states in substance that, while she had never before served as minute clerk in criminal cases, she had been fully instructed by her predecessor and the judge as to how bills should be taken down in her note book; that she had theretofore taken bills in civil cases and that she was on the alert throughout the entire trial, anticipating that a bill might be reserved.

The trial judge, in his per curiam, sets down fairly and completely his impressions of the occurrence and concludes that, if appellants’ attorney reserved a bill during the proceedings, he did not hear him. He expresses it thus:

“I was sitting a distance of some seven (7) feet from Mr. Schwartz, paying very close attention to the trial of the case, and if he reserved a Bill of Exceptions to my ruling he must have said it under his breath, because I did not hear him.”

He accordingly overruled the motion for a new trial and sentenced appellants to terms in the penitentiary at hard labor. Hence the appeal.

In this Court, counsel for appellants have endeavored to direct to our attention an alleged error respecting the admission of certain unsworn testimony (supposed to have been given by appellants’ accomplice, Edwards, at the trial) and they make vague suggestions of prejudicial matters which might have occurred at the trial. Suffice it to say that none of the complaints upon which counsel rely is contained in a bill of exceptions. Accordingly, inasmuch as they are not patent on the face of the record, we are without authority to notice the alleged errors. Articles 502 and 558, Code of Criminal Procedure; State v. Malazza, 177 La. 995, 149 So. 885; State v. Green, 205 La. 439, 17 So.2d 620 and cases there cited.

Counsel further contend that the judge erred in not upholding the testimony of appellants’ former attorney and in concluding that a bill of exceptions to the police officers’ testimony was not reserved. From a reading of the testimony on the motion for a new trial in conjunction with the court’s per curiam, it appears that the judge was fully warranted in finding that a bill of exceptions had not been reserved. It is true that the judge, in deference to the attorney, is unwilling to positively contradict his testimony and merely states that, if a bill was reserved, he did not hear it. However, he makes it quite clear in his per curiam that he does not believe that a bill was takin by emphasizing that he was sitting only seven feet from the lawyer “paying very close attention” and that he did not hear him reserve a bill. Additionally, the judge’s impression is fortified by the testimony of the minute clerk who stated that no bill was reserved. After all, the attorney, knowing that the testimony was not being reported by a stenographer, should have made certain that his exceptions, together with the evidence, objection and ruling, were being noted by the minute clerk. The mere notation by the clerk of “Bill Reserved” would have been insufficient. Article 500, Code of Criminal Procedure; State v. Champagne, 160 La. 47, 106 So. 670; State v. Smith, 149 La. 700, 90 So. 28 and cases there cited.

The facts of State v. Reed, 180 La. 741, 157 So. 547, depended on by appellants, in no way resemble those of this case. There, it was shown that the court stenographer failed to take down many of the defendant’s objections; that in a few instances only did she mention the reasons for the objections and that, in no instance, did she set down the reasons assigned by the judge for his rulings. Under the circumstances, this court held that it was impossible to determine whether there was error committed below; that defendant was without fault in the premises and that the failure of the stenographer to perform her duty had the effect of depriving defendant of his statutory right to have the testimony reduced to writing. Accordingly, a new trial was ordered.

The convictions and sentences of appellants are affirmed.

O’NIELL, C. J., absent