author: PRICE, Judge.

text:
    Herman MEADOR, Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY, Defendant-Appellee.
    No. 13267.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    Rehearing Denied, En Banc, Aug. 29, 1977.

      Hamilton, Carroll & Miller by Orlando N. Hamilton, Jr., Oak Grove, for plaintiff-appellant.
    Madison, Files, Garrett, Brandon & Ha-maker, by James P. Madison, Frank B. Tug-well, Bastrop, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

Herman Meador has appealed the rejection of his claim for workmen’s compensation benefits for a total and permanent disability.

The issue is whether plaintiff has borne the burden of proving his disability resulted from an accidental injury- in his employment with defendant International Paper Company. The trial court held that plaintiff failed to sustain this burden.

Plaintiff contends he injured his back while performing heavy labor on June 28, 1974, and has been permanently disabled since that date. Plaintiff worked for defendant at its Bastrop mill as a pipe fitter for more than thirty years. He has a long history of back problems beginning with an on-the-job injury in 1965. During that year, he underwent surgical removal of three intervertebral discs. He again submitted to surgery in 1970 for the removal of two more discs. After recovery from these surgical procedures, plaintiff continued his employment with defendant as a pipe fitter until August, 1974, at which time he applied for and was granted sickness and disability benefits under a company policy.

The trial judge rejected plaintiff’s demands for these reasons:

The total evidence here falls short of meeting plaintiff’s burden. Prior surgery and steady degeneration had unquestionably brought about a chronic and fragile condition in his back. In a medical sense, it could even be said that he was substantially “disabled” during the period of 1970-1974. Nevertheless, he was regularly employed at his regular job and periods of exacerbation apparently developed both with and without regard to his employment activity. To the extent that it can be traced in this record, his medical history may also be said to support the inference that he was more likely to encounter difficulty during or following the more physically strenuous requirements of his work. Yet, with rest and conservative treatment when necessary, as well as caution and judicious conduct on his part, he did quite well— apart from numerous other health problems not associated with his back.
The only evidence of an accident and any new or different or more disabling condition appears in the testimony of plaintiff and his wife. Not only is that testimony conflicting and unsatisfactory in some respects, but it is either not supported or is directly contradicted by all other evidence. Moreover, plaintiff has at different times presented contradictory claims and had admitted under oath his tendency to provide information according to his view of his best interests at that moment. Though possible, a conclusion that plaintiff suffered an accident as alleged and that he is now totally disabled to perform his skill would require speculation and conjecture. Certainly, such a conclusion cannot be considered more probable than not on this record. Plaintiffs demands must be rejected.

These findings of the trial judge are based on a reasonable evaluation of the credibility of testimony and reasonable inferences of fact and, in accord with the rule of Canter v. Koehring Co., 283 So. 2d 716 (La.1973), must be affirmed.

Plaintiff made no report of an accidental injury to his back to his supervisor or to first aid in accord with company regulations with which he was thoroughly familiar. He contends he was assisting a fellow employee install a heavy valve under a paper machine at the time of injury. This employee could not recall plaintiff telling him that he had hurt his back, although he could remember working with plaintiff in installing the valve. Plaintiff was admitted to Glenwood Hospital in West Monroe the day following his alleged accident. He sought treatment for a possible heart condition or kidney stones and gave no history of having sustained an accidental injury at work the day before.

Two weeks later, upon discharge from the hospital, plaintiff contacted defendant’s first aid department through his wife who made no report of plaintiff having had an accident at work.

On August 14, 1974, plaintiff applied for sickness and accident benefits and certified in his application that his sickness or injury did not arise out of his employment. The physician who examined plaintiff in connection with this application described his incapacity to be due to arthritis and hypertension.

In January, 1975, when applying for permanent disability benefits under a policy covering mill employees, plaintiff again certified his disability was not due to an accident.

These inconsistencies and contradictions are sufficient to justify the adverse findings of fact on which the trial judge rejected plaintiffs demands. See Prim v. City of Shreveport, 297 So.2d 421 (La.1974).

The judgment is affirmed at appellant’s cost.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Charlie HOPKINS, Plaintiff-Appellant, v. Bill KEITH and the Shreveport Times, Defendants-Appellees.
    No. 13272.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    Rehearing Denied, En Banc, Aug. 29, 1977.

      Barry E. Edwards, Shreveport, for plaintiff-appellant.
    Tucker, Martin, Holder, Jeter & Jackson by Robert McLean Jeter, Jr., Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Plaintiff, Charlie Hopkins, brought suit to recover damages against the publisher of The Shreveport Times and one of its reporters, Bill Keith, for allegedly libelous statements contained in two news articles published in The Shreveport Times. The articles characterized plaintiff as a “convicted gambler” and as having been “convicted for running a gambling game.” On findings that the statement that plaintiff was a convicted gambler is true, that defendants were justified in relying on a statement of the Clerk of the Shreveport City Court that a bond forfeiture constituted a conviction, and that defendants were without fault, the district court granted defendants’ motion for summary judgment and dismissed plaintiff’s suit. Plaintiff appealed. For reasons set forth in this opinion, we affirm.

The articles complained of were published in the newspaper on June 2 and June 5, 1976, and were the second and third of three articles which referred to plaintiff. The articles were written pursuant to intensive investigation and reporting by The Shreveport Times of the activities of the Shreveport Department of Public Safety and its then Commissioner, George D’Ar-tois.

The first article was published May 16, 1976. The tenor of the article is that Commissioner D’Artois gave preferential treatment in directing the granting of liquor permits to a number of persons who did not meet all requirements for the permits. One of the persons referred to is plaintiff who is described as having several arrests and as having answered “no” to a question that asked if he had ever been convicted for, among other things, letting a disorderly place. The article states that records in the criminal clerk’s office show that Hopkins forfeited bond on that charge on January 9, 1975, and Clerk Ed Crump said that bond forfeiture constitutes a conviction.

The next article appeared on June 2 and was headlined “Hopkins Liquor Permit Seized”. The article begins: “The mystery surrounding why convicted gambler Charlie Hopkins received a city liquor license took a new twist Tuesday.” The article reports that plaintiff’s license was picked up by city detectives and that “Hopkins’ record shows several arrests on charges of operating gambling games, letting a disorderly house and selling beer and whiskey without a license. He was convicted for running a gambling game.” The article goes on to state, as did the first article, that Hopkins answered “no” to a question that asked if he had ever been convicted for running a gambling house although records in the criminal clerk’s office show that Hopkins forfeited bond on that charge and Clerk Ed Crump said that bond forfeiture constitutes a conviction.

The third article appeared in the Times on June 5 and was headlined “Local Man Sues State for Liquor Permit.” The article reports that plaintiff had filed suit to attempt to force the state to grant him a beer and liquor permit. The article repeats the statement contained in the second article that Hopkins’ record shows several arrests on charges of operating gambling games, letting a disorderly house, and selling beer and whiskey without a license, and that he was convicted for running a gambling game. The article does not contain the explanation that the clerk said that bond forfeiture constitutes a conviction.

The statements contained in the second and third articles which plaintiff contends are false and libelous per se are that he is a “convicted gambler” and that he was “convicted of running a gambling game.”

The affidavits, depositions, exhibits and other material filed in connection with the motion for summary judgment disclose the following undisputed facts:

(1) The records of the Shreveport City Court disclose that on January 10, 1963, plaintiff was fined $10 on a charge of gambling. (By counter-affidavit, plaintiff admits the 1963 arrest on a charge of gambling, but denies that he ever appeared in court or paid a fine. The fact is, however, that the public records disclose a conviction on a charge of gambling in 1963).
(2) The records of the Shreveport City Court disclose that on January 17, 1966, plaintiff was arrested and charged with gambling with dice and on January 20, 1966 forfeited bond in the amount of $17.50.
(3) The records of the Shreveport City Court disclose that on December 10,1971, plaintiff was arrested and charged with carrying a concealed weapon, a liquor violation, and gambling with dice and was released on bond of $705, but there is no disposition of these charges.
(4) The records of the Shreveport City Court disclose that on January 2, 1975, plaintiff was arrested and charged with letting a disorderly house and on January 9, 1975 forfeited bond of $168.
(5) The records of Bossier City disclose that on March 22, 1971, plaintiff was charged with gambling and on March 25, 1971, he forfeited bond of $25 in the City Court of Bossier City.
(6) Prior to publication of the articles in question, reporter Bill Keith asked Clerk of Court Ed Crump about the effect of a bond forfeiture and was told by the Clerk that a bond forfeiture constituted a conviction.

Among the defenses posed by defendants in their motion for summary judgment is the defense of truth or substantial truth.

Truth or substantial truth is an absolute defense to a libel action. LSA-R.S. 13:3602; Otero v. Ewing, 165 La. 398, 115 So. 633 (1927); Wilson v. Capital City Press, 315 So.2d 393 (La.App. 3d Cir. 1975), writ denied La., 320 So.2d 203 (1975); Rosen v. Capital City Press, 314 So.2d 511 (La.App. 1st Cir. 1975). The availability of this defense is constitutionally mandated when applied to the reporting of information contained in official public records. “At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records.” Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). In reporting matters of public interest involving legal and judicial proceedings and records some errors and inaccuracies are bound to occur in the use of technical terms. Not every error or inaccuracy should be actionable. The error should be a significant variation from the truth to give rise to liability. In order to avoid a “chilling effect” on the exercise of First Amendment rights, the media must be allowed “breathing space.”

The characterization of plaintiff as a “convicted gambler” is true. As a matter of public record, plaintiff was convicted on a charge of gambling in 1963.

The statement that plaintiff was “convicted for running a gambling game”, viewed in the entire context of the articles and in the context of the actual facts as disclosed by the public records, is substantially true. Reporting the forfeiture of a substantial bond by the plaintiff on a charge of letting a disorderly house, arising out of allowing gambling on the premises, as a conviction on that charge is not a significant variation from the truth. While a bond forfeiture is not technically or legally the same as a conviction and carries significant legal distinctions, the similarities between the two, particularly in the lay mind, cannot be overlooked. A conviction is a judicial determination of guilt. A forfeiture of bond is a decision by the person charged not to appear for trial, thereby avoiding a judicial determination of guilt or innocence. The Legislature has equated bond forfeiture to convictions in some instances, such as for the purpose of suspending or revoking a motorist’s driver’s license for multiple traffic offenses. LSA-R.S. 32:414, 1472(C). Viewed in context, the error is relatively insignificant and a relatively minor deviation from the truth.

In viewing the content of the three articles referring to plaintiff, it is significant to note that in the first two articles, although the term “convicted” was used, the articles accurately reported the facts concerning the bond forfeiture and the Clerk’s explanation.

In Rosen, supra, the plaintiff was reported as having been charged with “illegal distribution of narcotics” whereas the charge actually was “unlawful distribution of biphetamine and obedrin”, which substances are not narcotics. Summary judgment for the defendants was affirmed on a finding of substantial truth.

There are no genuine issues of material fact related to the publication of the articles, the content of the articles or the status of the public records relating to plaintiff’s history of arrests, charges and disposition thereof. The articles being substantially true, without significant variation from the truth, defendants are entitled, as a matter of law, to judgment dismissing plaintiff’s suit for damages.

Resolution of this case on the basis of truth or substantial truth makes consideration of other issues urged by the parties unnecessary.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    James ATKINS, Plaintiff-Appellant, v. DEPARTMENT OF PUBLIC SAFETY State of Louisiana, Defendant-Appellee.
    No. 13273.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    Rehearing Denied, En Banc, Aug. 29, 1977.
    Burnett, Sutton, Walker & Callaway, by Glenn E. Walker, Ronald D. Smith, Shreveport, for plaintiff-appellant.
    Foye L. Lowe, Jr. and James C. Dixon, Baton Rouge, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

James Atkins has appealed the denial by the district court of his request for a restricted driver’s license under the provisions of LSA-R.S. 32:415.1 to enable him to earn a living for his family. We reverse the decision of the trial court for the following reasons.

The trial court held that Atkins, who had three convictions for driving while intoxicated that resulted in revocation of his driver’s license in 1974 and suspension in 1976, could not avail himself of the provisions of the statute as it is intended to apply to only those persons whose license has been suspended, revoked, or cancelled for the first time.

LSA-R.S. 32:415.1 in part provides as follows:

A. (1) Upon suspension, revocation or cancellation of a person’s drivers license for the first time only . . . said person within thirty days after initial notice from the department shall have the right to file a petition . . . alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood.
* * * * * *
A. (2) Notwithstanding the provisions of paragraph (1) of this Subsection, any person whose license is suspended, revoked or cancelled shall have the right to file an application for a restricted license on the grounds of economic necessity within ninety days after the effective date of this section.

Atkins relies on paragraph A. (2) which he contends allows “any person whose license has been suspended, revoked, or can-celled” to ask for a restricted license within ninety days of the effective date of the act even if his driver’s license had been terminated more than once.

The Department of Public Safety contends paragraph A. (2) must be read in context with the preceding paragraph which shows the legislative purpose was to provide relief for licensees whose license has been affected for the first time only. The Department contends the legislature intended paragraph A. (2) as a “grandfather clause” for those persons who received a notice of suspension or revocation more than thirty days prior to the effective date of this statute, but who would otherwise qualify under paragraph A. (1).

This statute has not been interpreted by an appellate court since its adoption in 1976. Although the interpretation urged by the Department is plausible, it is more probable the legislature intended to allow all persons, including those whose license had been affected more than one time, to apply for a restricted license for the limited period of ninety days. This interpretation is reasonable as prior to the adoption of this statute in 1976, Louisiana had no provision for a restricted license based on economic hardship.

We find it appropriate to give the statute a strict construction and interpret paragraph A. (2) in accord with a literal reading of the language employed. We therefore hold appellant is eligible to apply for a restricted license under this paragraph of the statute. The discretion to grant or reject the application rests with the trial court.

The judgment is reversed, and the case is remanded to the district court for further proceedings.


author: BOLIN, Judge.

text:
    Franklin J. and Theo Elaine Benedict TRAINOR, Plaintiffs-Applicants, v. Bennett H. YOUNG and Hartford Accident and Indemnity Company, Defendants-Respondents.
    No. 13304.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    Rehearing Denied, En Banc, Aug. 29, 1977.
    Writ Refused Nov. 4, 1977.

      Burnett, Sutton, Walker & Callaway by Ronald D. Smith, Shreveport, for plaintiffs-applicants.
    Cook, Clark, Egan, Yancey & King, by Sidney E. Cook, Shreveport, for defendants-respondents.
    Before BOLIN, MARVIN, and JONES, JJ.
   BOLIN, Judge.

Plaintiffs filed a medical malpractice suit against Dr. Young and his insurer. Writs were issued in order to decide whether the trial court erred in ordering plaintiffs to answer pretrial interrogatories identifying a physician from whom plaintiffs’ attorney had sought advice in preparing this suit. We find the trial court erred.

Suit was filed on October 1, 1976, and on November 9th, defendants filed interrogatories to be answered by plaintiffs. For disputed reasons plaintiffs failed to timely answer the interrogatories, and on April 13, 1977, the district judge ordered plaintiffs to show cause why answers should not be filed by April 25th or have their suit dismissed.

On April 21st, plaintiffs answered all interrogatories except a question requiring plaintiffs to name any physician from whom they had sought advice even though this physician would not be called as a witness. Plaintiffs stated in their answer to the motion to dismiss that they had sought the opinion of a physician in the Shreveport-Bossier area solely for the purpose of ascertaining the merits of a possible lawsuit; that this physician had been assured that he would not be called as a witness and that his name would not be disclosed.

On April 26th, plaintiffs filed a motion for a protective order decreeing that the information sought from the unnamed physician was not discoverable and that they be relieved from disclosing his identity. The court denied plaintiffs’ protective order which meant that the suit would be dismissed within ten days unless plaintiffs revealed the identity of the doctor. From this ruling plaintiffs sought and were granted writs.

Interrogatories may relate to any matters which may be inquired into by other discovery procedures. Louisiana Code of Civil Procedure Article 1458. The scope of discovery pertinent to this case is set forth in La.C.C.P. Articles 1422 and 1425. We find the identity of the physician was not discoverable because: (1) Since he was not to be used as a witness and his advice was sought to determine whether a suit should be filed, his identity was not relevant (La.C. C.P. Article 1422); and (2) assuming the identity of the doctor was relevant, there was no showing of exceptional circumstances as required under Article 1425.

For a summary of the recent discovery procedures, see Maraist, Recent Changes in Louisiana Discovery Law: An Analysis of Act 574 of 1976, 24 La. Bar Journal 161 (1976).

Defendants contend plaintiffs waived any objection to the interrogatories by failing to timely object to the relevancy of the questions, citing La.C.C.P. Article 1458. The cited article does not provide that failure to timely object will constitute a waiver. To the contrary, it provides, “The party submitting the interrogatories may move for an order under Article 1469 with respect to any objection to or other failure to answer an interrogatory.” Article 1469 sets up the procedure for compelling a party to answer interrogatories. As previously stated, defendants filed a motion to compel plaintiffs to answer the interrogatories and prior to the return date of the rule to show cause plaintiffs answered, and also filed a motion for a protective order pursuant to C.C.P. Article 1426. Under the facts of this case we find plaintiffs did not waive their right to object to the interrogatories.

The order of the trial court denying plaintiffs’ motion for a protective order is reversed and it is now ordered that plaintiffs be relieved of furnishing the name and address of the physician or otherwise furnishing the information sought in interrogatory No. 2. The writs previously issued are perpetuated at respondents’ cost.

      . Art. 1422.

      Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
      Art. 1425.
      Discovery of facts known by experts, otherwise discoverable under the provisions of Article 1422 and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
      (l)(a) A party may through interrogatories or by deposition require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts to which the expert is expected to testify, (b) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to Paragraph (3) of this Article, concerning fees and expenses as the court may deem appropriate.
      (2) A party may discover facts known by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Article 1465 [not applicable in this case] or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts on the same subject by other means.
      (3) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under Paragraphs (l)(a) and (2) of this Article; and with respect to discovery obtained under Paragraph (l)(a) of this Article the court may require, and with respect to discovery obtained under Paragraph (2) of this Article the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts from the expert.


text:
    Ronald McNEIL v. STATE of Mississippi.
    No. 49595.
    Supreme Court of Mississippi.
    July 20, 1977.
    Rehearing Denied Aug. 31, 1977.
    S. Robert Hammond, Jr., F. Douglas Montague, III, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

Before INZER, P. J., SUGG and LEE, JJ., and W. W. BROWN, Commissioner.

AFFIRMED.

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

GILLESPIE, C. J., took no part.


author: SUGG, Justice,

text:
    Willis JOHNSON and Betty Johnson v. John LEDBETTER, Sheriff of Jackson County, Mississippi.
    No. 49555.
    Supreme Court of Mississippi.
    July 20, 1977.
    Rehearing Denied Aug. 24, 1977.
    Alfred Lee Felder, Pascagoula, for appellants.
    A. F. Summer, Atty. Gen. by Edwin A. Snyder, Asst. Atty. Gen., Jackson, for ap-pellee.

      Before GILLESPIE, c' J., and SUGG and BROOM, JJ.
   SUGG, Justice,

for the Court:

This case comes to us on petitioners’ appeal from an order of a Habeas Corpus Court in Jackson County denying their petition for writ of habeas corpus. The effect of the denial of the writ releases the custody of petitioners to the Tennessee authorities for return to the State of Tennessee under an extradition warrant issued by the Governor of Mississippi at the request of the Governor of Tennessee. We affirm.

Defendant assigns as error a very narrow issue as the sole ground for reversal and our consideration is limited accordingly. Petitioners contend that they were not present in the State of Tennessee at the time of the commission of the crime charged in an indictment returned by a grand jury in Washington County, Tennessee on July 22, 1974 charging them with obtaining money under false pretenses on or about December 21, 1973.

Before considering the issue presented by this appeal, we must pause to note that the rights of petitioners are to be determined by the United States Constitution as implemented by 18 U.S.C.A. § 3182 (1969), the decisions of the United States Supreme Court, and Mississippi statutes to the extent that they may be in aid of, and not inconsistent with, the Constitution and laws of the United States on the question.

In Bishop v. Jones, 207 Miss. 423, 42 So.2d 421 (1949), this principle was stated as follows:

The rights of the relator are to be determined by Section 2, paragraph 2, of Article IV of the Constitution of the United States, as implemented by Section 662 [now § 3182], Title 18, U.S.C.A., and the decisions of the Supreme Court of the United States construing such constitutional provision and this federal statute, together with the help of state court decisions not inconsistent with the supreme law on the question of interstate extradition. State statutes and decisions relating to habeas corpus and extradition, such as our Code chapter on Habeas Corpus, Section 2815 et seq., Code of 1942, and Section 3981 thereof, are not applicable to interstate extradition except to the extent that they may be in aid of, and not inconsistent with, the Constitution and laws of the United States on the question. (207 Miss. at 438, 42 So.2d at 422).

Bishop was followed in Loper v. Dees, 210 Miss. 402, 49 So.2d 718 (1951) where we held that Mississippi statutes relating to habeas corpus and interstate extradition are not applicable except to the extent that they may be in aid of and not inconsistent with the Constitution and laws of the United States on the question.

These two cases follow the rule announced in South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933) where the United States Supreme Court stated:

These questions of federal right were properly submitted for consideration by the State court upon the return to the writ of habeas corpus. And it was the duty of that court to administer the law prescribed by the Constitution and.statute of the United States, as construed by this Court. (289 U.S. at 420, 53 S.Ct. at 670, 77 L.Ed. at 1296).

In Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515 (1905), the United States Supreme Court held that the questions before the governor of an asylum state are whether the person demanded has been substantially charged with a crime, and whether he is a fugitive from justice, and stated:

The first is a question of law and the latter is a question of fact, which the governor, upon whom the demand is made, must decide upon such evidence as is satisfactory to him. (196 U.S. at 372, 25 S.Ct. at 784, 49 L.Ed. at 517).

The Court further stated:

The issuing of the warrant by him, with or without a recital therein that the person demanded is a fugitive from justice, must be regarded as sufficient to justify the removal, until the presumption in favor of the legality and regularity of the warrant is overthrown by contrary proof in a legal proceeding to review the action of the governor. Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544; Hyatt v. New York, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657 (196 U.S. at 372, 25 S.Ct. at 784, 49 L.Ed. at 517).

In South Carolina v. Bailey, supra, the Court held that the person in custody as a fugitive from justice under an extradition warrant, in proper form, should not be released unless, beyond a reasonable doubt, such person was without the demanding state when the alleged offense was committed, and said:

Speaking for the Court in Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 112, 52 L.Ed. 121, 126, Mr. Justice Harlan said — ‘When a person is held in custody as a fugitive from justice under an extradition warrant, in proper form, and showing upon its face all that is required by law to be shown as a pre-requisite to its being issued, he should not be discharged from custody unless it is made clearly and satisfactorily to appear that he is not a fugitive from justice within the meaning of the Constitution and laws of the United States. We may repeat the thought expressed in Apple-yard’s Case [Appleyard v. Massachusetts,] 203 U.S. 222, 27 S.Ct. 122, 51 L.Ed. 161, 7 Ann.Cas. 1073], above cited, that a faithful, vigorous enforcement of the constitutional and statutory provisions relating to fugitives from justice is vital to the harmony and welfare of the States, and that ‘while a State should take care, within the limits of the law, that the rights of its people are protected against illegal action, the judicial authorities of the Union should equally take care that the provisions of the Constitution be not so narrowly interpreted as to enable offenders against the laws of a State to find a permanent asylum in the territory of another State.’
Considering the Constitution and statute and the declarations of this Court, we may not properly approve the discharge of the respondent unless it appears from the record that he succeeded in showing by clear and satisfactory evidence that he was outside the limits of South Carolina at the time of the homicide. Stated otherwise, he should not have been released unless it appeared beyond reasonable doubt that he was without the State of South Carolina when the alleged offense was committed and, consequently, could not be a fugitive from her justice.
The record discloses only a conflict of evidence; the requirement which we have indicated has not been met; and the challenged judgment must be reversed. (289 U.S. at 421, 422, 53 S.Ct. at 671, 77 L.Ed. at 1297).

Relying on these two cases we held, in Taylor v. Garrison, 329 So.2d 506 (Miss.1976), the demanding state must show that (1) the person demanded is substantially charged with a crime under its jurisdiction, (2) he is a fugitive therefrom, (3) to be a fugitive from a demanding state, the person sought to be extradicted must have been within the state at the time the crime was committed, (4) one is not a fugitive if he establishes beyond a reasonable doubt that he was without the border of the demanding state at the time of the commission of the crime, and (5) a prima facie case is made out by the warrant of extradition issued by the governor of the asylum state. We also held in Bishop v. Jones, supra, that the question of fugitivity is an issue of fact and is within the scope of inquiry in a habeas corpus proceeding.

In this case, the issuance of an extradition warrant for petitioners by the Governor of Mississippi was prima facie evidence that the petitioners had been substantially charged and were fugitives from the demanding state. At the habeas corpus hearing the state introduced all of the documents pertaining to the extradition issued by the Governors of the States of Tennessee and Mississippi together with the indictment against petitioners. Petitioners then had the heavy burden of overcoming the prima facie case thus made out.

The only evidence offered by the petitioners was their testimony that they were in Ohio and not Tennessee on December 21, 1973. This case then presents the narrow question of whether the testimony of petitioners, standing alone, that they were not in Tennessee on the date of the crime charged in the indictment is sufficient to overcome the prima facie case made out by the Governor’s extradition warrant. We do not find any case in which the United States Supreme Court has addressed this question, but the courts of Texas have held that the testimony of a petitioner or his spouse, or both, that he was not present in a demanding state at the time the crime charged was committed is not sufficient to rebut a prima facie case. Ex parte Harrison, 469 S.W.2d 571 (Tex.Cr.App.1971); Ex parte Harvey, 459 S.W.2d 853 (Tex.Cr.App.1970); Ex parte Sutton, 455 S.W.2d 274 (Tex.Cr.App.1970); Ex parte Thomas, 393 S.W.2d 908 (Tex.Cr.App.1965).

The reason for the rule is that any person demanded by a state could defeat extradition by merely denying that he was in the demanding state at the time the offense was committed. This would give such person the power to defeat extradition in any case.

We hold that the testimony of the petitioners, standing alone, was not sufficient to rebut the prima facie case that they were in the demanding state at the time the crime was committed.

Although petitioners did not assign as error, they argue that, if the crime was committed, it was committed in the State of Ohio and not in the State of Tennessee. The question of whether the crime was committed in Ohio as opposed to Tennessee is a defense involving a question of law and fact and is a jurisdictional question to be decided under the laws of Tennessee. This defense is beyond the limited issue permitted in a habeas corpus hearing in extradition cases. In Pierce v. Creecy, 210 U.S. 387, 28 S.Ct. 714, 52 L.Ed. 1113 (1908), the United States Supreme Court stated:

This court, in the cases already cited, has said, somewhat vaguely, but with as much precision as the subject admits, that the indictment, in order to constitute a sufficient charge of crime to warrant interstate extradition, need show no more than that the accused was substantially charged with crime. This indictment meets and surpasses that standard, and is enough. If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of states with those jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the states, and fruitful of miscarriages of justice. The duty ought not to be assumed unless it is plainly required by the Constitution; and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance. (Emphasis supplied).
(210 U.S. at 405, 28 S.Ct. at 720, 52 L.Ed. at 1122).

The defense raised by petitioners should be properly resolved in the courts of Tennessee.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.

      . STATE OF TENNESSEE, COUNTY OF WASHINGTON
      CRIMINAL COURT
      May Term, 1974
      The Grand Jurors of the State of Tennessee, duly summoned, elected, empaneled, sworn, and charged to inquire in and for the body of the County aforesaid, in the state aforesaid, upon their oath, present that WILLIS JOHNSON AND BETTY JOHNSON heretofore, to wit, on or about the -21st day of December, A.D., 1973, in the County aforesaid, then and there did unlawfully, doing business as the City Club of Johnson City, Tennessee, by false pretense in violation of Tennessee Code Annotated 39-1901, defraud XYO Quip, Inc., Cincinnati, Ohio, of $45,000.00 in money by knowingly and with intent to defraud, furnish the said XYO Quip, Inc., a false and fraudulent financial statement dated November 1, 1973, claiming assets, free and unincumbered of approximately $600,000.00, consisting of real estate in the State of Mississippi, which assets, in fact, did not exist; further, defendants furnished said XYO, Quip, Inc., a false statement on a statement form of Coolidge Johnson, General Contractor, Johnson City, Tennessee indicating that Coolidge Johnson had expended $15,-928.00 in labor and materials in building and installing a bar in the said City Club of Johnson City, Tennessee, when in fact, said statement is false and was not submitted by Coolidge Johnson.
      Further, said XYO Quip, Inc., in executing a purchase-lease agreement with defendant in connection with the said City Club of Johnson City, believing above documents to be true and correct and relying thereon, on or about December 21, 1973, gave defendants $45,000.00 in money, causing XYO Quip, Inc., to purchase alleged property described in the statement on the false statement form of Coolidge Johnson, and to date no repayment to XYO Quip, Inc., has been made, and against the peace and dignity of the State of Tennessee
      (SIGNED-)_
      Attorney General
      Assistant Attorney General


text:
    Donald R. COLLINS v. Carl WILSON.
    No. 49527.
    Supreme Court of Mississippi.
    July 27, 1977.
    Rehearing Denied Aug. 24, 1977.
    Sullivan, Smith, Hunt & Vickery, Elzy J. Smith, Jr., F. Ewin Henson, III, Clarksdale, for appellant.
    Luckett, Luckett, Luckett & Thompson, W. O. Luckett, Jr., Clarksdale, for appellee.
   Appeal from Circuit Court, Coahoma County; J. C. Feduccia, Judge.

Before INZER, P. J., and ROBERTSON and WALKER, JJ.

AFFIRMED.


text:
    MISSISSIPPI GAME & FISH COMMISSION v. Glen Austin DAVIDSON.
    No. 49536.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    Rehearing Denied Aug. 17, 1977.
    A. F. Summer, Atty. Gen. by J. B. Gar-retty, Sp. Asst. Atty. Gen., Jackson, for appellant.
    Self, Bailey & Jordan, Daniel P. Self, Jr., Meridian, for appellee.
   Appeal from Chancery Court, Clarke County; Howard R. Pigford, Chancellor.

Before INZER, P. J., and ROBERTSON and WALKER, JJ. '

REVERSED AND ORDER OF THE GOVERNOR REINSTATED.

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


author: SMITH, Justice,

text:
    Thomas THORNE v. STATE of Mississippi.
    No. 49784.
    Supreme Court of Mississippi.
    Aug. 3, 1977.
    As Modified on Denial of Rehearing Aug. 24, 1977.

      Charles R. Wilbanks, Corinth, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   SMITH, Justice,

for the Court:

Thomas Thorne was convicted of armed robbery in the Circuit Court of Alcorn County and sentenced to ten years imprisonment. He has appealed, assigning several grounds for reversal.

It is undisputed that Thomas Thome and one William Vann robbed Gibson’s Pharmacy at Corinth of money and drugs. Upon their trial William Vann was convicted and a mistrial was ordered as to Thorne when the jury was unable to agree as to him. Thorne was retried and convicted. It is from that conviction and the ten year sentence imposed that he has appealed. At the time of Thorne’s retrial Vann’s appeal to this Court was pending.

In general there is no substantial dispute in the evidence. Vann and Thorne robbed Gibson’s Pharmacy at gunpoint obtaining drugs and money. According to Thorne, Vann carried the pistol and Thorne aided in removing cash from the register. Testimony of a clerk that Thorne searched for a safe is disputed by Thorne. Before leaving Thorne cut the telephone wires. An officer dispatched to the scene observed a red Fire-bird automobile being driven in a reckless manner at a high rate of speed in the vicinity and gave chase. He was fired upon by an occupant of the automobile. Thorne testified that he drove the Firebird and that it was Vann who fired. A collision occurred between the Firebird and another vehicle and Vann and Thorne were found in the automobile with the cash and drugs. Also found was an automatic pistol with two cartridges remaining in the clip. Vann and Thorne were taken into custody and given the warnings required by Miranda.

Thorne does not deny participating in the robbery but asserts that he did so because he was coerced by Vann and feared for his life. Thorne said that Vann was a drug addict and had begun suffering withdrawal symptoms. He said that as Vann had pulled a pistol he, Thorne, felt that he had to “go along.” According to Thorne, Vann had ordered him to stop at the pharmacy in Corinth. It was also contended by Thorne that he had deliberately driven the escape car into the other vehicle.

It is argued by Thorne on appeal that he was tried by a jury not constituted according to law. A special venire had been ordered and drawn and one Elton Cletus Malone had been seated on the jury. It developed that the wife of this juror, Mrs. Elton Cletus Malone, had been one of the prospective jurors named in the venire facias rather than her husband. Mr. Malone had been served by mistake and Mrs. Malone had not been served and was not present. This was not discovered until after the jury, including an alternate juror, had been accepted and empaneled. Thorne moved to quash the panel. The denial of this motion is said to have been prejudicial error.

When this matter was brought to the attention of the trial court the trial judge offered the defense an extra challenge as to Mr. Malone. This offer was rejected and accompanied by a motion for a new panel. The motion for a new panel was denied but the trial court, on its own motion, removed Mr. Malone and placed the alternate juror on the panel. It is now argued that the effect of the trial court’s action was to dismiss Mrs. Malone from service without cause and that because Mrs. Malone was not in attendance, not having been served through an error, Thorne was not tendered the complete panel of twelve jurors. It is also asserted that the trial court erred in replacing Mr. Malone with the alternate juror.

The State answers that Thorne has not shown that any prejudice resulted because of what was done and, moreover, (1) there was no motion to compel the attendance of Mrs. Malone; (2) the trial court offered defendant an extra challenge to remove Mr. Malone which was declined and (3) the alternate juror, who was seated after Mr. Malone was removed by the trial court, had been accepted and approved both by the State and the defendant; (4) the jury selection statutes are directory and not mandatory; (5) and challenges to the array will not be sustained except where fraud is shown.

In support of his contention that the trial court’s action was prejudicial and requires reversal, Thorne cites Boles v. State, 24 Miss. 445 (1852). However, in Hale v. State, 72 Miss. 140, 16 So. 387 (1894) this Court disposed of Boles as follows:

There was no error in the trial court’s refusing, on defendant’s application, to direct compulsory process for the special venireman, Brown, who had been duly summoned, and who was not in attendance. There was an intimation to that effect in Boles v. State, 24 Miss. 445, but that was upon consideration of a statute which required the jurors to be taken from the persons “thus summoned,” unless the special venire should be exhausted before the jury is completed. Hutch. Code, § 1007. But that statute was amended, certainly, as early as 1857, and, as thus amended, it has been brought forward in all other subsequent codes. By the codes of 1857,1871,1880, and 1892 the jury is to be impaneled from those “summoned and in attendance” under the special venire, unless that shall have been exhausted without securing a jury, in which event resort shall be had to the regular panel, etc. The change in the law, which now requires the jury to be made up from the special veniremen “summoned and in attendance,” completely vindicates the court’s action in this particular. (72 Miss, at 146, 16 So. at 388).

The significant words “and in attendance” noted in Hale, supra, as distinguishing that case from Boles, have remained in the statute ever since. Mississippi Code Annotated section 13-5-77 (1972).

The State also calls attention to the provision in Mississippi Code Annotated section 13-5-87 (1972) which provides:

All the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely, and a jury listed, drawn, summoned or impaneled, though in an informal or irregular manner, shall be deemed a legal jury after it shall have been impaneled and sworn, and it shall have the power to perform all the duties devolving on the jury.

We are unable to discover any basis upon which it might be found that the actions of the trial court prejudiced Thorne in any way. On the contrary, the trial court acted logically and fairly and in excusing Mr. Malone on his own motion removed any reasonable ground for complaint by Thorne.

By writ of habeas corpus ad testifi-candum Thorne obtained the presence of his coindictee, William Vann, as a witness. At the time of the trial Vann’s appeal to this Court seeking a reversal of his conviction was pending. When this circumstance was brought to the attention of the trial court by the State, it was suggested that Vann should have explained to him his Fifth Amendment rights in view of the possible reversal for retrial of his conviction. It is also suggested by the State that kidnapping and possibly other crimes might be involved because of Thorne’s version of the robbery. Thereupon the trial court explained to Vann his right not to testify to facts tending to incriminate him. Vann was then placed on the stand by Thorne. After stating his name, that he had been convicted of the robbery previously and that his appeal from that conviction was pending, he was asked by defense counsel:

Q. Now, Mr. Vann, when this incident occurred, I want to ask you did you force, at gunpoint, Thomas Thorne, have a gun in your possession — force him to assist you in the robbery that occurred at Gibson’s Discount store?

An objection to the leading nature of the question, was made and sustained, and leave granted to the defense to reframe the question. The following then occurred:

Q. Did you at any time threaten Thomas Thorne or use the gun that you had to threaten him in this robbery down there?
A. (By Vann) Do I have to answer that?
THE COURT:
Mr. Vann, I have previously advised you that if you testify here it’s at your own choice. You have the right to testify or not testify as you so choose.
A. Well, I don’t choose to answer that.
MR. WILBANKS: (For the Defense)
Q. You don’t wish to answer the question?
A. No, sir.
Q. William, do you feel that the questions you might answer here having to do with your involvement might affect your appeal to the Supreme Court and a future trial?
A. That’s what these people here told me.
MR. WILBANKS:
I don’t believe we have any further questions.
THE COURT:
Any cross examination?
MR. GARDNER (For the State)
We have nothing.

It is Thorne’s contention here that the action of the trial court in advising Vann of his Fifth Amendment right to refuse to testify was prejudicial error and requires reversal. Since the trial court was informed that Vann’s conviction of the crime was then on appeal and consequently might be reversed and a new trial ordered, we have concluded that it was proper that Vann, before testifying, have his Fifth Amendment rights explained to him.

We are not confronted with a question as to whether it might have been an abuse of judicial discretion not to do so or the effect of a failure to so instruct the witness under the circumstances. In any event we do not consider that the action of the trial judge was an abuse of sound judicial discretion. Under the circumstances the trial court did not err in declining to force Vann to testify to facts which might incriminate him upon retrial of the case against him and Vann was within his own right in declining to so testify.

It is next complained that an instruction granted at the request of the State is the equivalent of an instruction condemned by this Court which is known as the “you do not have to know” instruction. Pryor v. State, 239 So.2d 911 (Miss.1970). The instruction criticized is in the following language:

The State does not have to prove the charge beyond all possible doubt before a conviction can be had, but the State must prove the Defendant guilty beyond a reasonable doubt before you can convict.

We agree that the instruction is objectionable in attempting to emphasize the distinction between reasonable doubt, as used in the other instructions, and “all possible doubt” and should not have been given. However, it does not reach the prejudicial proportions of the “you do not have to know” instruction condemned in Pryor. The instruction is argumentative, and although it may be suggested that the argument is legally correct, such matters should be limited to the remarks of counsel, not embodied in instructions emanating from the court. Considered in the context of the numerous instructions given touching the State’s burden, we have concluded that in this case substantial prejudice did not result to appellant from it.

Other matters assigned and argued have been examined and considered and do not constitute reversible error or require discussion.

AFFIRMED.

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


text:
    Frank J. MYRICK v. STATE of Mississippi.
    No. 49840.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    Fraiser, Burgoon, Henson & Abraham, James W. Burgoon, Jr., Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    M. L. GRIFFIN, Jr. v. Stanley M. CARPENTER.
    No. 49534.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    Wallace R. Gunn, Hattiesburg, for appellant.
    Dan R. Wise, Hattiesburg, for appellee.
   Appeal from Chancery Court, Perry County; John M. Dunnam, Chancellor.

Before INZER, P. J., ROBERTSON and WALKER, JJ., and KERMIT R. COFER, Commissioner.

REVERSED AND REMANDED.

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


text:
    MISSISSIPPI HIGHWAY COMMISSION v. Joseph M. MOSBY et al.
    No. 49544.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    Robert Dan Coit, Meridian, for appellant.
    Bourdeaux & Jones, Thomas R. Jones, Meridian, for appellees.
   Appeal from Special Court of Eminent Domain, Lauderdale County; H. C. “Mike” Watkins, Judge.

Before INZER, P. J., and ROBERTSON and WALKER, JJ.

REVERSED AND RENDERED.

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


author: LEE, Justice, PATTERSON, Chief Justice,

text:
    THORP COMMERCIAL CORPORATION and Fireman’s Fund Insurance Company of Newark, New Jersey v. MISSISSIPPI ROAD SUPPLY COMPANY.
    No. 49377.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    Rehearing Denied Aug. 31, 1977.
    Daniel, Coker, Horton, Bell & Dukes, Suzanne N. Cook, Thomas H. Suttle, Jr., Jackson, for appellants.
    Wise, Carter, Child, Steen & Caraway, Henderson S. Hall, Jr., Jackson, for appel-lee.
   LEE, Justice,

for the Court:

The Circuit Court of the First Judicial District of Hinds County, sitting without a jury, entered judgment on a replevin bond in favor of Mississippi Road Supply [MRS] against Thorp Commercial Corporation [Thorp] and Fireman’s Fund Insurance Company of Newark, New Jersey, surety, in the amount of five thousand one hundred fifty-six dollars thirty-two cents ($5,156.32), and held that the repairman’s lien of Mississippi Road Supply held priority over a perfected security interest of Thorp Commercial Corporation. Thorp and its surety appeal here.

The question to be decided is whether or not MRS had a valid repairman’s lien on certain equipment and whether or not the trial court erred in entering judgment in its favor.

On June 9, 1972, MRS sold Thorp a new International Model 7D-15(C) Power-Shift Crawler Tractor for the sum of fifty-six thousand eight hundred forty-five dollars ninety-five cents ($56,845.95). Subsequently, on June 13, 1972, Thorp entered into a lease agreement with James E. Herrin of Collins, Covington County, Mississippi, on the equipment. Thorp filed financing statements with the Secretary of State and with the Chancery Clerk of Covington County covering same and perfected its security interest on June 23,1972. An assignment of that interest was executed to ITT Industrial Credit Company September 24, 1974. In April and May, 1974, at Herrin’s request, MRS made repairs on and furnished parts for the tractor. Herrin failed to pay for same, whereupon MRS requested Thorp and ITT to satisfy the claim, which request was refused. MRS then attempted to secure payment of the repairs by having Herrin execute a promissory note and security agreement.

MRS returned possession of the equipment to Herrin about May 21, 1974, after receiving the promissory note and security agreement. Herrin defaulted November 1, 1974, on the Thorp lease contract, the total then due being fifty thousand five hundred ninety-seven dollars twelve cents ($50,-597.12). On January 1, 1975, Herrin voluntarily restored possession of the equipment to MRS. Thorp filed its replevin action July 8, 1975. The repairs made by MRS were necessary to maintain the tractor in operational condition and to prevent its depreciation. There was no change in the relationship or situation surrounding Thorp, MRS and Herrin (other than default by Herrin on the lease agreement) between the time MRS released the equipment to Herrin and the time it regained possession of same.

We now address the question of whether or not the repairman’s lien of MRS held priority over Thorp’s perfected security interest.

Mississippi Code Annotated Section 85-7-101 (1972) provides that a mechanic shall have a lien upon equipment for labor and material and shall have the right to retain possession of same until the bill is paid. After thirty (30) days, the mechanic may commence suit for the amount owed and for sale of the property to satisfy same.

Mississippi Code Annotated Section 85-7-105 (1972) states that in the event the lien-holder parts with possession of the property he shall retain his lien while same remains in the hands of the owner, or in the hands of one deriving title or possession through him, with notice that the amount of the repairs is unpaid.

Before adoption of the Mississippi Uniform Commercial Code, Section 85-7-101 and the case law (rule of law) established that mechanics’ liens take priority over pri- or conditional sales contracts or vendors’ liens (security interest). Commercial Securities Co. v. Kriner, 53 So.2d 92 (Miss.1951); Funchess v. Pennington, 205 Miss. 500, 39 So.2d 1 (1949); Billups v. Becker’s Welding & Machine Co., 186 Miss. 41, 189 So. 526 (1939); Broom & Son v. Dale & Sons, 109 Miss. 52, 67 So. 659 (1915). In De Van Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342 (1936), it was held that a mechanic’s lien was superior to a conditional sales contract with retention of title even though the seller had no knowledge of, nor gave its actual consent for, the repairs made.

Mississippi Code Annotated Section 75-9-310 (1972) (UCC) provides as follows:

“When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.”

There was no change in the status or rights of the parties between the date MRS delivered possession of the equipment to Herrin and the date it was restored to the possession of MRS, and Thorp could not be, and was not, prejudiced by such restoration. The cases of Manufacturer’s Acceptance Corp. v. Gibson, 220 Tenn. 654, 422 S.W.2d 435 (1967) and Krueger v. Texas State Bank, 528 S.W.2d 121 (Tex.Civ.App.1975) hold that under the said section [UCC § 75-9-310] a repairman’s lien has priority over a secured interest where the property is in possession of the mechanic. The cases of Forrest Cate Ford, Inc. v. Fryar, 62 Tenn.App. 572, 465 S.W.2d 882 (1970) and Balzer Machinery Co. v. Klineline Sand & Gravel Co., 271 Or. 596, 533 P.2d 321 (1975), deal with non-possessory liens (equipment out of possession) and are distinguished from the present case. We are in agreement with the rule that ordinarily a new statute will not be considered as reversing long-established principles of law and equity unless the legislative intention to do so clearly appears. Our lien statute [§ 85-7-101] and Section 75-9-310 manifest an intention that the said statutes are to be read and interpreted in pari materia.

MRS, being restored to the possession of the equipment voluntarily and with the cooperation of Herrin, had a lien upon goods in its possession within the meaning of Section 75-9-310, and such lien held priority over the security interest of Thorp. Consequently, the trial court was correct in entering judgment for MRS, and the judgment is affirmed.

AFFIRMED.

INZER and SMITH, P. JJ., and ROBERTSON, J., concur.

PATTERSON, C. J., and SUGG, WALKER and BROOM, JJ., dissent.

BOWLING, J., took no part.

PATTERSON, Chief Justice,

dissenting;

The result of the opinion, I fear, is to permit priority of creditors to be determined by the debtor. If he chooses to return property once relinquished by a repairman, the repairman prevails, but if he chooses not to relinquish possession of the property, the secured creditor prevails.

At the least, the majority opinion, in the absence of voluntary relinquishment, invites competition for possession between a secured party and a repairman who has previously relinquished possession of the property.

I dissent because I am convinced the legislature by the adoption of the Uniform Commercial Code intended priorities to be determined in a uniform manner, by statute, and not by the choice of a debtor or by the result of a race between creditors for possession.

At common law retention of possession was essential. As long as the repairman retained the goods, he clearly had priority over all creditors. If he relinquished possession, he lost not only the priority but the lien as well.

Because of this inequity, the legislature, in the absence of a uniform system of priorities or liens, enacted a law which continued the repairman’s lien even after loss of possession. While the statute said nothing about priorities, by court decision the statute was interpreted to give priority to the repairman’s lien. When these court decisions were made, there existed no uniform statutory scheme for determination of priorities, and priority was determined in part by common law rules and in part on a case by case basis.

The legislature adopted the Uniform Commercial Code in 1966. When adopted, the legislature was, of course, aware of its previous statutes and the court decisions constituting the former patchwork system of priorities, but chose to replace it with a new standardized system. Mississippi Code Annotated section 75-9-310 (1972) of the new legislation specifically provides that a mechanic’s lien takes priority when the repairman has possession of the property. The drafting history and intent of the Code, modern decision, and the statute to which the commercial code refers, all required “retained” possession as opposed to relinquishment and regained possession. Giving effect to the Mississippi Uniform Commercial Code provisions will not leave the repairman without remedy.

(1) He can protect himself completely by retaining possession as provided by statute.

(2) He can protect himself partially by taking a perfected security interest in parts used and giving notice to the prior creditor under Code Sections 75-9-107 and 75-9-314 (which he did in this case).

(3) He can protect himself by calling upon the prior secured party and obtaining his consent before making repairs (provided by statute).

(4) As a minimum, the repairman even upon relinquishment (and without availing himself of other code protections) is entitled to attain the priority of a judgment debtor.

The legislature has expressed an intent to adopt a uniform system. Mississippi Code Annotated section 75-1-102 (1972) of the enactment, in pertinent part, provides:

Purposes; rules of construction; variation by agreement.
(1) This code shall be liberally construed and applied to promote its underlying purposes and policies.
(2) Underlying purposes and policies of this code are
(a) to simplify, clarify and modernize the law governing commercial transactions;
******
(c) to make uniform the law among the various jurisdictions.

Because the legislature has stated its intentions and purposes in adopting a uniform system which requires possession be retained or that the creditor take other authorized protective actions, and because the majority opinion has the likelihood, I think, of defeating the legislative intention and making more complex the purposes of the uniform system in creating priorities, I respectfully dissent.

SUGG, WALKER and BROOM, JJ„ join in this dissent.

      . 2 Gilmore, Security Interest in Personal Property 873 (1965); Cases collected in 32 A.L.R. 1005, 1008-1010 (1924); see also Broom & Sons v. Dale and Sons, 109 Miss. 52, 60, 67 So. 659 (1915).

      . Miss.Code Ann, § 85-7-105 (1972) [originally Miss.Code Ann. § 1383 (1890)].

      . Funchess v. Pennington, 205 Miss. 500, 39 So.2d 1 (1949).

      . Miss.Code Ann. § 75-1-103 (1972). See also Miller, Liens Created by Operation of Law, 76 Comm.L.J. 221 (1971).

        . Forest Cate Ford v. Fryar, 62 Tenn.App. 572, 465 S.W.2d 882 (1971).

      . Miss.Code Ann. § 85-7-101 (1972).


author: LEE, Justice,

text:
    Dave HARKINS and N. A. B. Trucking Company v. W. E. PASCHALL.
    No. 49505.
    Supreme Court of Mississippi.
    Aug. 10, 1977.

      Jacobs, Griffith & Povall, Charles C. Jacobs, Jr., Cleveland, Allan D. Shackelford, Clarksdale, for appellants.
    Sullivan, Smith, Hunt & Vickery, Charles L. Sullivan, Clarksdale, for appellee.
    Before PATTERSON, SMITH and LEE, JJ.
   LEE, Justice,

for the Court:

The Circuit Court of Coahoma County entered judgment in favor of W. E. Pasc-hall in the sum of forty-seven thousand five hundred dollars ($47,500) against Dave Har-kins and N.A.B. Trucking Company as damages resulting from a truck-automobile collision. N.A.B. and Harkins appeal and we affirm.

Appellants contend that the lower court committed the following errors in the trial of the case:

(1) The court erred in applying sanctions against N.A.B. Trucking Company, cutting off its defense of no agency.

(2) The court erred in granting appellee’s Instruction No. 9.

(3) The court erred in instructing the jury that the driver of the truck in question was the agent of appellant Harkins at the time of the accident.

(4) The verdict of the jury was so excessive as to evince bias and prejudice.

On July 8,1973, appellee, accompanied by Mrs. Paschall, was driving his automobile to church. He was traveling at a speed of approximately forty (40) miles per hour when a tractor-trailer truck driven by Larry Hayes ran into the rear of his vehicle, knocked it off the highway, caused it to turn over several times, and injured Pasc-hall and his wife. The tractor was owned by Harkins and was leased to N.A.B. The trailer was owned by N.A.B.

I.

Did the court err in applying sanctions against N.A.B. Trucking Company, cutting off its defense of no agency?

Appellee filed his suit May 15, 1975, and directed interrogatories to N.A.B. which were served on May 28,1975; answers were due by June 29, 1975. On July 17, 1975, appellee’s attorney contacted N.A.B.’s attorney reminding him that the interrogatories had not been answered. The responses were filed on July 30, 1975, only five (5) days (which included Saturday and Sunday) before the trial date of August 4. The answers were evasive and unresponsive to the questions. Some of the interrogatories were answered by simply setting forth the words “Motion to quash” without stating a reason for the motion. The interrogatories were not taken under oath of the party as requested, but were signed by the attorney for N.A.B. Before trial, appellee moved the court for an order declaring the driver Hayes to be the agent of N.A.B. because of willful failure to comply with Mississippi Code Annotated § 13-1-51 (1972), which provides:

“If the testimony of a party to the suit be desired by the adverse party, interrogatories to him may be filed in the clerk’s office, and a copy thereof, with notice of filing, shall be given the party, or his attorney or solicitor. If he fails to answer such interrogatories within thirty (30) days after service thereof, or within such further time as the court, for good cause shown, may allow, his plea shall be dismissed, if he be plaintiff or complainant, and if he be defendant his plea or answer may be taken off the file and judgment by default entered, or the bill be taken as confessed.”

The statute is highly penal in nature and a violation must be clearly manifested before the penalty (sanctions) may be inflicted. Keathley v. Hancock, 212 Miss. 1, 53 So.2d 29 (1951); Givens v. Southern Express Co., 106 Miss. 834, 64 So. 737 (1914).

The penalty should be applied only where a party has had time to answer the interrogatories and willfully neglected or declined to do so. Where a party’s failure to answer is not intentional, the court is not justified in imposing sanctions. A. J. Higgins Lumber & Export Co. v. Price, 120 Miss. 123, 81 So. 787 (1919); Hibernia Bank & Trust Co. v. Beech, 117 Miss. 668, 78 So. 609 (1918). However, the trial court has considerable discretion in matters relating to discovery and its order will not be disturbed unless there has been an abuse of that discretion. Paulk v. Housing Authority of City of Tupelo, 228 So.2d 871 (Miss.1969).

The answers to Interrogatories No. 29 [Appendix I] and No. 30 [Appendix II] (directed to the issue of agency) were so evasive and unresponsive that they constituted a willful refusal to answer same. Such failure to answer was crucial to appel-lee’s case, and the trial court did not abuse its discretion in applying the penalty provided under Section 13-1-51 and in entering default on the question of agency.

II.

Did the trial court err in granting appel-lee’s Instruction No. 9?

Instruction No. 9 is as follows:

“The Court instructs the jury that if you find for the Plaintiff in accordance with the other instructions given you by this Court, then the Defendants may be liable for harm to the Plaintiff although a preexisting physical condition of the Plaintiff, not known to their agent, makes the injury, if any, and the resulting damages, if any, to the Plaintiff greater than that which the Defendants or their agent should have foreseen.”

In Tri-State Transit Company v. Martin, 181 Miss. 388, 179 So. 349 (1938), this Court, quoting from Section 461, Restatement of Torts, stated:

“ ‘The negligent actor may be liable for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes, the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct.’ Section 461, Restatement of Torts.” 181 Miss. at 398, 179 So. at 351.

Instruction No. 9 referred to “other instructions given you by this Court.” The court granted Harkins’ Instruction No. Dl-5 which in substance stated:

“The Court instructs the jury that damages must be reasonable. You may award the Plaintiff only such damages as will fairly and reasonably compensate him for the injuries or damages which you believe from a preponderance of the evidence he has sustained as a proximate result of the accident. . . . ”

The court also granted N.A.B. Instruction No. 2-D-2 which is as follows:

“The Court instructs the jury that the burden is on the Plaintiff to prove by a preponderance of credible evidence that the Plaintiff has sustained damages as a proximate result of the negligence of Hayes, and such damages, if any, cannot be established by mere surmise, conjecture, or speculation.”

Instruction No. P-5 told the jury that it could compensate plaintiff for damages and injuries, if any, which the jury believed from a preponderance of the evidence was sustained as a result of the collision, and it set forth certain elements of damages that could be taken into consideration by the jury.

We are of the opinion that all instructions considered together, along with Instruction No. 9, properly and adequately instructed the jury on the issues and this assignment is without merit. However, the Bench and Bar are reminded that the use of an abstract principle of law from one case, without applying it to the specific facts of the case under consideration, may invite reversible error.

III.

Did the trial court err in instructing the jury that the driver of the vehicle in question was the agent of Harkins at the time of the accident?

Harkins testified that the driver (Hayes) was accepted by him after N.A.B.’s requirements for a driver were met, that he could have refused to allow Hayes to drive the truck, that Hayes was engaged in the business of N.A.B. but that Harkins received compensation for the use of the truck, that Harkins paid the driver after withholding federal and state income taxes and social security taxes, that Hayes was his employee and that he had the authority to terminate Hayes’ employment, even though N.A.B. determined the origination point of the trip and the route to be taken by the driver. Hayes testified that Harkins hired him and paid him for his work, gave instructions as to what he should do, furnished expense money for the trip, and had the right to fire him.

Harkins contends that Hayes was not his agent, but, rather, was the agent of N.A.B., and he relies on Runnels v. Burdine, 234 Miss. 272, 106 So.2d 49 (1953). In that case, Burdine furnished his dragline, its operator (Kelly) and fuel to Longview for the sum of twelve dollars fifty cents ($12.50) per hour. Longview had the right to, and did, control and direct Kelly’s work on the premises where construction was underway, while Burdine had no such right. This Court held that Kelly was the agent of Longview rather than Burdine.

The service performed by driver Hayes was controlled (or subject to control) by Harkins as well as N.A.B., and the relationship of agency existed between them. Texas Co. v. Mills, 171 Miss. 231, 156 So. 866 (1934). A servant may be the agent of two masters who are not joint employers. Biggart v. Texas Eastern Transmission Corp., 235 So.2d 443 (Miss.1970); Robertson v. Stroup, 254 Miss. 118, 180 So.2d 617 (1965).

On the uncontradicted testimony of Har-kins and Hayes, the trial court correctly instructed the jury that Hayes was the agent of Harkins.

IV.

Was the verdict of the jury so excessive as to evince bias and prejudice?

Appellant and his wife were fifty-five (55) and sixty-five (65) years of age, respectively. He was confined in the hospital for a period of eighteen (18) days and was in traction four (4) days of that time; he wore a cervical collar for a period of six (6) months after his release from the hospital; he suffered a back sprain and an acute cervical sprain resulting in a fifteen percent (15%) partial disability. Previously, appellant had an operation for a malignancy and muscles of his neck were removed. The injury aggravated that condition. He suffered pain and was suffering pain at the time of the trial, his medical expenses totaled one thousand three hundred thirty-six dollars seventy-four cents ($1,336.74), and he lost two months’ wages at eight hundred fifty-four dollars ($854.00) per month base pay. His automobile valued at six hundred dollars ($600.00) was totally destroyed.

Appellee sought loss of consortium as an element of damages. Consortium includes companionship and society of a wife along with loss of her services. She was hospitalized for forty-four (44) days, and was unable to perform her household duties for a period of ten (10) months to one (1) year. Thereafter, she could do only light housework. She could not accompany ap-pellee to church and on trips, nor could she engage in other activities which she and appellee had enjoyed together prior to the accident.

N.A.B. argues that the court, in permitting detailed evidence about Mrs. Paschall’s injuries, influenced the jury to compensate her, as well as appellee, when she had previously compromised her claim. However, in order to show the incapacity of one spouse to perform the customary and usual duties involved in the marital relationship, it is necessary to show the extent of the injuries which caused that incapacity.

It is the province of the jury to determine damages and, unless the verdict is so excessive as to indicate bias, passion and prejudice on their part, that verdict will not be disturbed by this Court. The question is not what the Court would have done had it been sitting as a jury, but whether or not the verdict violates the rule of law stated. We are unable to say that this verdict was so large as to evince bias, passion and prejudice on the part of the jury. Farmer v. Smith, 207 So.2d 352 (Miss.1968); Morton Broiler Farms, Inc. v. Morgan, 191 So.2d 137 (Miss.1966).

Appellant Harkins argues that the trial court erred in admitting mortality tables in evidence. Since it was not assigned as required by Supreme Court Rule 6(b), we do not consider it here.

For the reasons stated, there being no prejudicial errors in the record, the case is affirmed.

AFFIRMED.

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

APPENDIX I

Answer to Interrogatory No. 29

“29. Did N.A.B. receive any benefit from the use of your tractor on July 8,1973, or would it have done so if the collision had not occurred.

Answer: I do not understand the question.”

APPENDIX II

Answer to Interrogatory No. 30

“30. State what control, if any, N.A.B. had over the driver, Larry G. Hayes, on the date of the accident, as to:

(a) The origination point for the particular trip;

(b) The cargo or freight that was to be loaded and transported naming the shipper;

(c) The route to be followed on the trip;

(d) The destination and the unloading point for the cargo;

(e) Determination of the place to which the driver would proceed with the tractor and trailer unit after reaching the original destination.

Answer: (a) This question is unclear.

(b) There was no freight or cargo on the trailer.

(c) Route selected by driver.

(d) The driver was probably told by Mr. Harkins what the destination was.

(e) The driver already knew this.”


author: BROOM, Justice,

text:
    Alvin CULBERSON v. STATE of Mississippi.
    No. 49897.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    Roger Dean Harris, Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court:

Death sentence resulted from trial of Culberson (appellant) in the Harrison County Circuit Court, Second Judicial District, upon a capital murder indictment. Appellant’s assignments of error and brief relate to (1) constitutionality of the Mississippi death penalty statute as it existed prior to Jackson v. State, 337 So.2d 1242 (Miss.1976), handed down subsequent to Culberson’s trial, and (2) the weight of the evidence. We would affirm except, as conceded by the state, retrial must be ordered under United States Supreme Court decisions adhered to by Jackson requiring bifurcated trials in death penalty cases.

The state’s evidence shows that on January 31, 1975, appellant shot and killed Grady V. Evans, a route salesman, while Evans was stopped at a business establishment near Gulfport, Mississippi. Evans had accepted an order for merchandise from an employee of the establishment, and went outside to his truck to fill the order. While Evans was outside, appellant struck him with a stick back of the neck. Apparently appellant intended to rob Evans and, after striking him with the stick, shot him with a pistol. The jury accepted the state’s evidence and rejected appellant’s defense based upon an alibi.

Pursuant to Jackson, supra the case must be retried with bifurcated aspects as to the separate phases of guilt-finding and sentence-determination. Caldwell v. State, 347 So.2d 1389, decided by this Court on July 20, 1977; Jones v. State, 342 So.2d 735 (Miss.1977); Henderson v. State, 342 So.2d 744 (Miss.1977); Ivey v. State, 341 So.2d 918 (Miss.1977).

There is no merit to the proposition argued by appellant that the conviction is contrary to the weight of the evidence. Testimony of co-defendant Alvarese Pittman (who turned state’s evidence) was sufficient to establish the murder, and his testimony was supported by testimony of other nearby witnesses and by the physical facts. Pittman described how the appellant first struck Evans with a stick and then shot him. According to Pittman, he and Culberson then fled. Nearby witnesses heard the shot and saw the two defendants fleeing and were able to describe their appearance and clothing. To the contrary, appellant’s girl friend, as did other witnesses, supported his alibi which was rejected by the jury. The record shows that the testimony of appellant’s accomplice (co-defendant) is neither unreasonable or uncorroborated, and raised a classic jury question. Upon this posture of the case, it was for the jury to determine the credibility of the witnesses and we cannot say that the jury verdict was not adequately supported by competent testimony. No other argument raised by appellant merits discussion.

Accordingly, the conviction must be reversed and the case remanded for trial with bifurcation in accordance with Jackson.

REVERSED AND REMANDED.

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


text:
    Henry Floyd ROME v. STATE of Mississippi.
    No. 49588.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    James M. Hall, Wiggins, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court.

Burglary conviction resulted from Rome’s trial in the Circuit Court of Stone County, which court sentenced him to six years imprisonment. Probable cause for Rome’s arrest, and admissibility of the fruits of the search of his person and car are the chief issues before us. We reverse.

During the night of November 11, 1975, the Stone County Courthouse was burglarized and almost $2,000 stolen. Not knowing of the burglary, police officer Bodie (designated also as Bodine in the record) was on routine foot patrol in the courthouse vicinity after midnight when a noise came to his attention. It sounded like the tearing of metal and was coming from the vacant Montroy house south of Mr. Parson’s office. His suspicions aroused by the noise, Bodie spotted two men (one on the Montroy porch and the other nearby bending over something on the ground), at which time he made known his identity and ordered them to halt. One of the subjects escaped by running east toward the street; the other ran toward (as if to attack) Bodie, who took him into custody and radioed Officer Griffin for assistance without giving any details about any crime. The arrestee identified himself as Paul Vincent from New Orleans, but his driver’s license identified him as Robert Paul Hebert. Police officers took Vincent to the police station where a search of his person revealed a seven inch knife and approximately $1200 cash plus other money labeled “Bi-Centennial Tags $108.00.”

After Police Chief Simpson arrived at the police station a short time later, Officer Griffin returned to the area of the Montroy house from where he observed a 1970 or 1971 Chevrolet car traveling slowly in an easterly direction on Border Avenue at a point 75 to 100 yards from where Vincent was captured. Following the car, Griffin noted that it had a Louisiana license tag, which caused him to think it was connected with the earlier events. Griffin “blue-lighted” and stopped the car after it “speeded up a little,” although he observed no law violation or erratic behavior on the part of the car or its driver. Then he took into custody the driver (whose driver’s license showed his name as one “Cooper”) later identified as Henry Floyd Rome. Officer Griffin’s testimony was that under these circumstances he might have arrested any person who drove down the street where Rome was arrested at fifteen miles per hour, even if the car had a Mississippi tag.

After Griffin’s arrest of Rome, subsequently discovered evidence (which went to the jury) was obtained from his person and car connecting him with the courthouse burglary. Evidence taken from a search of Rome’s person included a card from Golden Slipper Steak House bearing telephone number 524-0513. The arrest of Rome made possible, and led to a search of his car (several hours later, about 10:00 a. m.) by the law officers armed with a search warrant, from which search there was obtained incriminating evidence. . Rome argues that his arrest by Officer Griffin was without probable cause and was illegal, and that, therefore, reversible error occurred when the jury was allowed to receive the critical items of evidence taken from his person and car. The argument was originally made by motion to suppress, which the trial judge overruled.

WAS THE ARREST OF ROME BASED ON PROBABLE CAUSE, MAKING ADMISSIBLE INTO EVIDENCE THE FRUITS OF THE SEARCH OF HIS PERSON? The Fourth Amendment to the United States Constitution and § 23 of the Mississippi Constitution of 1890, in almost identical language, secure citizens from unreasonable searches and seizures. Mississippi Code Annotated § 99-3-7 (1972) authorizes warrantless arrests “when a felony has been committed” and the investigative officer or person has reasonable ground to suspect and believe the person proposed to be arrested committed the felony. Probable cause means more than bare suspicion, but does not necessarily require sufficient evidence to support a criminal conviction. Powe v. State, 235 So.2d 920 (Miss.1970).

Powe has similarities to our present case and it, too, turned on the question of probable cause for a warrantless arrest. In Powe the burglar alarm at the Coca-Cola Bottling Company in Hattiesburg was activated. This drew police officers patrolling in the vicinity to the building where they found that an outer door had been prized open. While reconnoitering the area, the officers arrested one suspect found on the premises. The officers were informed that a second person was seen there described as: approximately six feet tall, of medium size, and having dark complexion and dark hair. By further investigation, the officers in Powe found parked on a nearby street (bearing a Louisiana tag) an automobile which they ascertained belonged to none of the residents in the area. After putting the automobile under surveillance, the officers observed a man running away from the wooded area near the plant toward the automobile. They immediately arrested him and we upheld the legality of the arrest, but in Powe the officers had a description of the second suspect in question, which is not true here as to Rome. Another case in which we dealt with probable cause is Holt v. State, Miss., 348 So.2d 434, decided July 27,1977; There, in finding probable cause, we noted that an investigative law officer (1) knew a felony had been committed, (2) had sufficient reason to believe that the perpetrators of the crime were in a certain residence, and (3) had information as to how the robbers were dressed, plus other details connecting the suspects with a known robbery. Accordingly, we held that the officers had a right to enter the residence to arrest the robbers and make a search, but the present case is skimpy on probable cause when compared to Holt.

Hall v. State, 288 So.2d 850 (Miss. 1974), held that in determining whether a search is reasonable, we must review the arresting officer’s action in the light of practical everyday events and be mindful of the “unpredictable behavior of the criminal element in society.” Viewing the actions of Officer Griffin in such a manner, we cannot find that his arrest of Rome was based upon probable cause and therefore legal. At the time Griffin arrested Rome, Griffin was aware of the events related to him by Bodie, including the arrest of Vincent. Griffin also knew that Bodie’s suspicions had been aroused by the strange noise emanating from the area of the nearby abandoned house where Bodie saw two men, one of whom had escaped. Other facts known to Griffin were that from Vincent’s (not Rome’s) person there had been removed a large sum of cash, including a bundle marked “Bi-Centennial Tags $108.00.” From these facts one might fairly conclude that Griffin had sufficient trustworthy evidence to suspect that some offense had been committed by Vincent, but on such facts could he conclude with reasonable cause that Rome had committed a felony? We think not.

From the evidence it appears that, when he arrested Rome, Griffin surmised that the car and its then unidentified driver were possibly on an unlawful mission: The officer’s hunch or suspicion proved to be accurate, but as this Court has previously said, an unlawful search, though made in honest belief of right, remains unlawful and its fruits forbidden. McNeely v. State, 277 So.2d 435 (Miss.1973). Of critical significance here is the fact that the record is devoid of any proof that Griffin, at the time he arrested Rome, had any reasonable ground to “suspect and believe” that Rome had committed the “felony” as required by Mississippi Code Annotated § 99-3-7, supra. According to Griffin, he did not know that the courthouse had been burglarized when he took Rome to the police station and there told Rome that the burglary had occurred. Craft v. State, 202 Miss. 43, 30 So.2d 414 (1947). Based upon the totality of the circumstances of this case, we cannot hold that there was sufficient evidence at the time Griffin arrested Rome to even infer that this particular person was the offender who escaped when the other was arrested. Neither can we hold that Griffin had sufficient evidence to believe that Rome had committed a felony. Therefore, we must hold that Rome’s warrantless arrest was illegal and the evidence taken from his person was inadmissible. To uphold the arrest would be to lay down the unacceptable rule that law officers may arrest any stranger deemed by them to be suspect of having committed an unknown crime, and then hunt a crime to be charged against such a citizen. Green and Green v. State, 348 So.2d 428, decided July 27, 1977, presented an arrest following an “investigative” stop after which the officers looked inside the car they had stopped and saw a “safe” in plain view. Here, there was no “investigative” stop — Rome was simply arrested and taken into custody.

WERE ITEMS TAKEN FROM THE CHEVROLET CAR DRIVEN BY ROME ADMISSIBLE? This evidence which went to the jury included drills, drill bits, and a receipt (found on the dashboard) dated October 29, 1975, from Mon Arc Welding in Gretna, Louisiana, for some tubing, oxygen and a cutting tip for an acetylene torch. Having already determined that Rome’s arrest was illegal, we must decide if the search of the car several hours later was purged from the taint of the illegal arrest by means of the search warrant. In considering this proposition, we note the following significant facts: (1) The car would not have been impounded and made available for its search except for the initial illegal arrest; (2) Rome did not freely and voluntarily surrender the car or its contents; (3) the search was not based upon information independent of the illegal search (in this regard we point out that the statement of underlying facts and circumstances refers to Rome’s arrest).

Silverthorne Lbr. Co., Inc. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426 (1970), held that facts improperly gained by the prosecution do not thus “become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong can not be used by it in the way proposed.” (251 U.S. at 392, 40 S.Ct. at 183). Here it cannot be held that obtaining items of evidence taken from the search of Rome’s car was not accomplished by exploitation of the illegality of his arrest which rendered the car available for its subsequent search by warrant. Well established in our jurisprudence is the rule of law that the legality of a search and seizure must be based on preceding steps which themselves are legal. Davidson v. State, 240 So.2d 463 (Miss.1970). An earlier case, Canning v. State, 226 So.2d 747 (Miss.1969), held that a search and seizure which is illegal at its inception is not rendered legal by “what it brings to light.” See also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Baylor v. State, 246 So.2d 516 (Miss.1971).

Accordingly, we must hold that placing before the jury the evidence taken from Rome’s person and car constituted reversible error. Having made this holding, we do not reach the question of whether the search warrant was illegal for (1) having been issued by one not a “neutral and detached” magistrate, or (2) failure to particularly specify the items to be seized. As Griffith, J., stated in Cochran v. State, 191 Miss. 273, 2 So.2d 822 (1941), “our duty is to maintain that convictions shall be within, and not without the law" even though in some instances a guilty party may have his conviction set aside.

There is no merit to Rome’s argument that ownership of the courthouse was not adequately proven. However, because of the illegal arrest of Rome and the improper admission into evidence of the items taken from his person and car, the case must be reversed and remanded for retrial should the state be able to make out a case against Rome by other evidence.

REVERSED AND REMANDED.

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


author: SMITH, Presiding Justice,

text:
    Hendrick SPENCER v. STATE of Mississippi.
    No. 49515.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    Guy & Dowdy, C. Wayne Dowdy, Ronald L. Whittington, McComb, for appellant.
    A. F. Summer, Atty. Gen. by Seherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

Hendrick Spencer was convicted of the capital murder of a police officer under the provisions of Mississippi Code Annotated section 97-3-19(2)(a) (Supp. 1976) and was sentenced to death. His conviction and sentence must be reversed and the cause retried in accordance with Jackson v. State, 337 So.2d 1242 (Miss. 1976).

Appellant has also assigned as error the trial court’s refusal to grant an instruction that defined the lesser included offense of manslaughter and permitted the jury to find the defendant guilty of that offense if supported by the evidence. The question is answered by Jackson v. State, supra.

[Wjhen warranted by the evidence, the trial court may instruct the jury with reference to lesser included offenses. However, such an instruction should not be indiscriminately or automatically given, as was condemned in Roberts v. Louisiana, supra, 428 U.S. [325] at 334, 96 S.Ct. [3001] at 3007, 49 L.Ed.2d [974] at 982, but should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence. (337 So.2d at 1255).

The trial judge was without benefit of the Jackson holding during the trial of the case, but should follow its ruling and instruct the jury as to lesser included offenses if the evidence adduced upon retrial should justify the giving of such an instruction.

Other matters assigned as error are without merit or are of such a nature as are not likely to recur upon the retrial of the case.

The case will be reversed and remanded for a new trial and further proceedings consistent with the opinion in Jackson v. State, supra.

REVERSED AND REMANDED.

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