author: BOWLING, Justice,

text:
    LONG’S TRANSFER & STORAGE v. Gene BUSBY.
    No. 50232.
    Supreme Court of Mississippi.
    May 3, 1978.
    Rehearing Denied May 24, 1978.

      C. R. McRae, Pascagoula, for appellant.
    Levi, Denham & Russell, Dempsey M. Levi, Ocean Springs, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant appeals from a judgment of the Circuit Court of Jackson County granting appellee the sum of $2,700. A brief discussion of the pleadings and facts is necessary before applying the law thereto.

Appellee, Gene Busby, filed his suit in two counts. The first count alleges that on or about March 22, 1974, appellee delivered certain items of furniture and packages containing personal belongings to the duly authorized representative of the appellant, a local transfer and storage company. This count further sets out that on October 12, 1974, appellant sold appellee’s stored property pursuant to Mississippi Code Annotated section 75-7-210 (1972), a provision of the Uniform Commercial Code. It was alleged .that appellant failed to follow the provisions of said section requiring that appellant advertise in a local newspaper for two consecutive weeks that the property would be sold on a certain date. Appellee alleged that the newspaper advertisement stated that the property would be sold on October 23, 1974, when in fact it was sold on October 12, 1974. He alleged that on October 15 he attempted to pay for the storage and secure his property but was advised of the previous sale and that appellant could do nothing about it. Appellee alleges in the first count that appellant wilfully converted his property contrary to law and that he was entitled to a judgment from appellant in the amount of the value of the property together with punitive damages.

The second count of the declaration charges that the appellant was guilty of negligence in failing to comply with the statutes in reference to notice of sale and that because of such negligence he was entitled to recover the value of his property and punitive damages in addition thereto.

Appellant filed its answer consisting of three parts: demurrer, answer and affirmative defense. The affirmative defense alleged that the parties entered into a written warehouse receipt and storage contract and were bound by that instrument. It alleged that the appellee breached the contract, and, therefore, was not entitled to recover.

The proof in the case is largely without dispute. At the time the goods were stored, appellee lived at Gautier, Mississippi, a short distance from Pascagoula. The purpose for storing the goods was to attend a physician’s assistant school in another state. For some reason he returned to Jackson County around the first of July, 1974, and notified the appellant of his address there. In the meantime, appellant had been forwarding monthly statements to appellee at the address given at the time the goods were stored. After being informed of a new address in July, appellant started mailing correspondence there. Appellee admitted receiving one or two monthly statements showing the monthly additional charge and the total amount due. It is undisputed that appellee did not make any of the monthly payments, his reason being that at the time of storage a representative of appellant advised him that he would not have to make a payment for a year as he was a student. Appellant vigorously denies this agreement.

The latter part of August, appellee again moved out of state. He testified that he called the office of appellant and notified it of his change of address. He testified that he also executed a change of address card at the local post office.

On August 10, 1974, appellant forwarded a letter to appellee at the July address informing him that his goods would be sold according to law if the storage charge was not paid within ten days. On September 11, a similar letter was again sent to appel-lee at the same address by certified mail. The first letter was not returned, but the second was returned “unclaimed.”

Appellant then caused a notice of sale to be published in the local newspaper on September 24, October 4, and October 11, advising that because of nonpayment of storage charges the appellee’s property would be sold at auction. The property of several other bailors was included in the same notice. The notice stated that the sale would be held on October 23, 1974, whereas, as stated above, it was actually held on October 12.

An important item of evidence that is undisputed is that on October 11, appellee talked by long distance telephone with his mother-in-law who lived in Pascagoula. She advised him that she had seen the notice of sale in the local paper and that the property would be sold on October 23. If the notice had advised the sale would be held on October 12, appellee would have had a chance to stop the sale of his property.

Appellee came to Mississippi and upon arrival on October 15, he contacted appellant and learned that his property was sold on the 12th. He then contacted an attorney and this suit was filed.

At the trial of the cause, Robert E. Long, owner of appellant company, and its manager, Don Flurry, testified positively that the sale date of October 23, as it appeared in the newspaper advertisement was a clerical error either by the paper or appellant’s office staff. The testimony was positive that the sale at all times was intended to be on the 12th. Some of the persons whose property was to be sold appeared before the 12th and redeemed their property by paying the storage charges.

Although the case was fully developed by the testimony of appellee and his witnesses, this evidence in no manner contradicted appellant’s evidence that the error was a mistake and was a clerical error and there was no intent deliberately to set out an erroneous sale date.

Two sections of the Uniform Commercial Code apply here. Code section 75-7-204, under the heading “Duty of care; contractual limitation of warehouseman’s liability,” provides as follows:

(1) A warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable for damages which could not have been avoided by the exercise of such care.
(2) Damages may be limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in case of loss or damage, and setting forth a specific liability per article or item, or value per unit of weight, beyond which the warehouseman shall not be liable; provided, however, that such liability may on written request of the bailor at the time of signing such storage agreement or within a reasonable time after receipt of the warehouse receipt be increased on part or all of the goods thereunder, in which event increased rates may be charged based on such increased valuation, but that no such increase shall be permitted contrary to a lawful limitation of liability contained in the warehouseman’s tariff, if any. No such limitation is effective with respect to the warehouseman’s liability for conversion to his own use.
(3) Reasonable provisions as to the time and manner of presenting claims and instituting actions based on the bailment may be included in the warehouse receipt or tariff.

Code section 75-7-210 provides in part as follows:

(1) Except as provided in subsection (2), a warehouseman’s lien may be enforced by public or private sale of the goods in block or in parcels, at any time or place and on any terms which are commercially reasonable, after notifying all persons known to claim an interest in the goods. Such notification must include a statement of the amount due, the nature of the proposed sale and the time and place of any public sale. The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the warehouseman is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the warehouseman either sells the goods in the usual manner in any recognized market therefor, or if he sells at the price current in such market at the time of his sale, or if he has otherwise sold in conformity with commercially reasonable practices among dealers in the type of goods sold, he has sold in a commercially reasonable manner. A sale of more goods than apparently necessary to be offered to insure satisfaction of the obligation is not commercially reasonable except in eases covered by the preceding sentence.
(f) After the expiration of the time given in the notification, an advertisement of the sale must be published once a week for two (2) weeks consecutively in a newspaper of general circulation where the sale is to be held. The advertisement must include a description of the goods, the name of the person on whose account they are being held, and the time and place of the sale. The sale must take place at least fifteen (15) days after the first publication. If there is no newspaper of general circulation where the sale is to be held, the advertisement must be posted at least ten (10) days before the sale in not less than six (6) conspicuous places in the neighborhood of the proposed sale.
(5) A purchaser in good faith of goods sold to enforce a warehouseman’s lien takes the goods free of any rights of persons against whom the lien was valid, despite noncompliance by the warehouseman with the requirements of this section.
(9) The warehouseman is liable for damages caused by failure to comply with the requirements for sale under this section and in case of willful violation is liable for conversion.

As hereinbefore stated, appellee based the first request in his declaration on the latter part of subsection (9) alleging that there was a “wilful violation” and therefore appellant was liable for conversion. We find no cases in point on this question. We do find cases by this Court defining the term “wilfulness.” In E. L. Bruce Co. v. Edwards, 192 Miss. 1, 3 So.2d 846 (1941), in a case dealing with the wrongful cutting of trees, the Court said:

Statutory damages for such cutting may be allowed only when the proof shows that the cutting was willful. This implies both knowledge and intent or a degree of recklessness so gross as to constitute willfulness. Mere mistake or carelessness is not enough.

In Mississippi Insurance Commission v. Savery, 204 So.2d 278 (Miss.1967), we find the following:

“Wilful” is a word denoting an act done consciously and intentionally, or knowingly and purposely, without justification or excuse. The word as ordinarily used in courts of law denotes some element of design, intention or deliberation and intention to do or refrain from doing some act, and not mere inadvertence. Dorroh v. State, 229 Miss. 315, 90 So.2d 653 (1956), citing 94 C.J.S. Willful at 620, 624 (1956).

This Court has no alternative but to hold that appellee did not prove appellant’s action in regard to the erroneous sale date to be “wilful” as that term has been defined. As stated, the positive testimony of appellant was that it merely constituted an error either by the newspaper or appellant’s office. The positive testimony was that none of appellant’s employees or representatives, including Long and Flurry, saw the advertisement before the sale on October 12. Also, as stated, appellee introduced no evidence to contradict appellant on the reason for the error and bases his contention solely on the fact that an erroneous date was listed. Therefore, we find that the lower court erroneously submitted the case to the jury on some of the instructions authorizing a finding of “wilfulness” on the part of appellant as that term is used in Code section 75-7-210(9).

Regarding the instructions, several were presented to the jury that were based on negligence. A comparative negligence instruction was given the jury even though the first count of the declaration was based solely on a charge of wilful conversion under the statute. As hereinbefore stated, however, the second part of the declaration was based on negligence.

At the time the original warehouse storage contract was executed and the possession of the property transferred, the contract required an agreement between the parties as to the value of the property. This could be done as stated in Code section 75-7-204 in several ways, including the value per unit of weight. At the time of executing the contract, appellee agreed that the property had a value of sixty cents per pound. The property had a weight of 1950 pounds, which would set the weight unit value at $1,170.

Appellant contends that appellee is not entitled even to the agreed amount of damages under the statute for the reason that a copy of the contract was not attached to the declaration pursuant to Mississippi Code Annotated sections 11-7-45 and 11-7-47, and for the reason that appellee did not request contractual damages in his declaration. On first consideration this appears to be a valid contention. In fact, appellee in his brief goes “all out” for wilful conversion damages rather than damages for which he contracted. His attorney, on oral argument, however, receded from this position.

As hereinbefore stated, the second part of appellee’s declaration was based on negligence. This was in effect admitted by appellant at the trial. Also, as stated, appel-lee learned on October 11 that the advertisement for sale was in the newspaper but that it listed the sale date as October 23. If the correct daté of October 12 had been shown he could have done something about stopping the sale and securing his property before the sale the next day.

Although appellee did not attach a copy of the contract to his declaration, appellant in its affirmative defense relied on the terms of the contract in its defense. It is the opinion of the Court that as a matter of law appellee is entitled to the contractual damage amount for the loss of his property, and the jury should have been so instructed. Under the pleadings and instructions in the case, there would be no need to burden the court by ordering a retrial of the cause. The record is in such posture that a final judgment may be rendered by this Court. Therefore, we hold that the lower court should have directed a judgment for appel-lee in the amount of contractual damages of $1,170, and the cause will be affirmed with the judgment modified to show the correct amount. The judgment, therefore is affirmed and modified to grant appellee here a judgment against appellant in the sum of $1,170. All costs are to be divided equally between the parties.

AFFIRMED AS MODIFIED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Zora GUNTHARP and the Estate of Grady E. Guntharp, for and in Behalf of Booneville Grain Company, a Mississippi Corporation v. PLANTERS OIL MILL, a Mississippi Corporation, R. B. Flowers, T. G. Flowers, Jr., Harry Flowers and Paul E. Gregory, Jr.
    No. 50407.
    Supreme Court of Mississippi.
    May 3, 1978.
    Rehearing Denied May 24, 1978.

      Parker, Averill & Butts, David 0. Butts, Jr., Tupelo, for appellants.
    Dulaney & Dulaney, J. W. Dulaney, Jr., Tunica, for appellees.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This appeal is under the provisions of Mississippi Code Annotated Section 11-1-17 (1972), providing that any party to litigation in the lower court may appeal if the lower court has not rendered a final decision within six months from the date the cause was taken under advisement or the final due date of the briefs. Appellants perfected their appeal under this statute, and, as required, the appeal is the same as if a final decree had been rendered adversely to them.

The appeal is from the Chancery Court of Tunica County. Planters Oil Mill, one of the appellees, filed its bill of complaint against Booneville Grain Company, Charles Crabb as executor of Grady E. Guntharp, Mrs. Grady E. Guntharp, Sr., Grady E. Gun-tharp, Jr., R. B. Flowers, T. G. Flowers, Jr., Harry Flowers and Paul E. Gregory, Jr. The bill of complaint alleged that the Booneville Grain Company was insolvent and requested a decree of the court liquidating that corporation with proceeds first to be applied to a debt owed complainant in the sum of $159,408.36.

Mrs. Zora Guntharp, Grady E. Guntharp, Jr., individually, and as successor executor of the estate of his father, Grady E. Gun-tharp, Sr., deceased, filed their answer and cross-bill against the complainant, Planters Oil Mill, and R. B. Flowers, T. G. Flowers, Jr., Harry Flowers and Paul E. Gregory, Jr. The cross-bill was essentially a derivative stockholders action on behalf of Booneville Grain Company and its minority stockholders alleging that cross-defendants had committed fraudulent acts against the corporate structure of Booneville Grain Company; that the cross-defendants failed to handle the business of the Booneville Grain Company to the best interest of that corporation; that the individual cross-defendants were officers of both complainant and defendant corporations and thereby were in a fiduciary relationship and did not deal with the Booneville Grain Company in a proper manner and converted funds of Booneville Grain Company to Planters Oil Mill. The cross-bill of complaint requested judgment for the above alleged actions in the sum of $406,382.13.

The answer of the original defendants denied that the complainant was entitled to any relief, including liquidation of the corporation. During the oral arguments, however, the solicitor for defendants and cross-complainants joined in the request to liquidate the corporation but retained the prayer for monetary damages.

The history of Booneville Grain Company is quite interesting. The corporation was organized and the business started in 1966, at which time the shares of stock were divided equally between the Flowers group of Tunica and the Guntharp group composed of Grady E. Guntharp, Grady E. Gun-tharp, Jr., and Daisey Blanchard, Mr. Gun-tharp’s daughter. Each of the six persons received fifty shares. Guntharp became president and acted in that capacity and in the management of the company until his death in 1970. The three Flowers brothers paid the corporation $5,000 each for their shares. R. B. Flowers then loaned the Gun-tharp group $15,000 to buy their shares. This loan was never repaid. From its inception, Booneville Grain Company went down a rocky road and has never been solvent. The complainant and cross-defendant, Planters Oil Mill, on various occasions, loaned Booneville Grain Company large sums of money without interest. These loans were secured from the Boone-ville branch of the Peoples Bank & Trust Company of Tupelo, Mississippi. Marion Smith was branch manager. None of these loans were made to Booneville Grain Company without the personal endorsement of R. B. Flowers; otherwise, the loans would not have been made.

The record is clear that on numerous occasions Grady E. Guntharp committed acts of gross mismanagement and wrongful acts in regard to Booneville Grain Company. Some of these acts amounted to embezzlement. He appropriated large sums of money to his own use; he wrote company checks to his wife and son; he speculated in the cotton market with the funds of the corporation, and lost large sums of money in this manner that were illegally withdrawn from company funds. These actions of wrongdoing on the part of Guntharp persisted until his death, at which time it appeared that the corporation was hopelessly insolvent.

Shortly before Mr. Guntharp’s death, ten shares of stock in the corporation were transferred to Marion Smith, the banker. According to appellants, this was for the purpose of Smith consenting to act as executor of Guntharp’s estate upon his death. According to Smith, this was done out of gratitude for assistance he gave the corporation. After Mr. Guntharp’s death, Smith transferred these ten shares to R. B. Flowers, who in turn transferred them to Paul E. Gregory, Jr., one of the cross-defendants below.

The corporate structure was reorganized after Guntharp’s death and R. B. Flowers became secretary-treasurer and gained control of the corporate operations and continued in that capacity until this suit was filed in November, 1974. The Booneville Grain Company continued operations of purchasing soybeans and immediately reselling them, which was the sole business carried on by the company. Appellants contend that during this period of time R. B. Flowers, for himself and the other appellees, entered into a course of business dealings with the soybean sales that resulted in decreased profits to Booneville Grain Company and increased profits to Planters Oil Mill. We will not go into these transactions in detail. It suffices to say that through the efforts of R. B. Flowers, Booneville Grain Company stayed in business although heavily in debt. A guaranteed percentage of profit was allocated to Booneville by Planters, although a large portion of the beans bought by Booneville Grain Company was sold through Planters. A margin of profit was allocated to Booneville that was greater than other grain elevators were receiving in the Booneville community.

No citation of authority is needed to recognize that R. B. Flowers and his two appellee brothers were in a fiduciary relationship with Booneville Grain Company. They were officers and directors of both corporations. Also no citation of authority is needed to recognize that in this capacity they had the duty of dealing fairly and with the utmost caution in regard to the business of Booneville Grain Company. This we find they did. There is no adequate proof in the record to make any finding that R. B. Flowers or the other appellees were guilty of fraud, mismanagement, waste, or any other act to the detriment of Booneville Grain Company. If it had not been for Flowers, Booneville would have been out of existence upon the death of Guntharp. Through the efforts of Flowers, the debts owed by Booneville were reduced so that at the time this cause was filed Booneville only owed Planters approximately $160,000, whereas upon the death of Guntharp, several times that figure was owed to Planters. Of course, this Court recognizes that the soybean buying and selling activities through Booneville after Guntharp’s death were carried on to secure the best tax benefits possible for all parties. This, however, certainly does not constitute fraud.

Appellants contend that the ten shares of Booneville Grain Company stock given Smith and then transferred to Flowers should be returned to the Guntharp group because of fraud. We find no justification whatever in this contention. At the time of the transfer from Smith to Flowers, these shares certainly were worthless.

The Court finds that there was no fraud or mismanagement committed by appellees in operating Booneville Grain Company from the time of Guntharp’s death until this litigation began. The proof is opposite to this contention. The actions of appellees kept Booneville operating until its final demise. At the time the suit was filed the company’s facilities were being rented to another company. We hold that there are no grounds for recovery by appellees under their cross-bill of complaint and it is dismissed.

We further find and hold that the prayer of the original bill of complaint be granted and that Booneville Grain Company be liquidated as provided by law; that out of the proceeds of such liquidation the first application of funds shall be to Planters Oil Mill in repayment of all or part of the debt owed Planters in the sum of $159,-408.36, and Planters is given judgment against Booneville Grain Company in the sum of $159,408.36.

If, after that distribution, any funds remain, they shall be distributed according to the records of the corporation regarding other debts and the holders of corporate stock.

The cause is remanded to the Chancery Court of Tunica County for the purpose of carrying out the mandate of this Court and the legal proceedings to effect the liquidation of Booneville Grain Company in accordance with this opinion.

JUDGMENT HERE FOR APPELLEE, PLANTERS OIL MILL, ON ORIGINAL BILL OF COMPLAINT, AND JUDGMENT HERE FOR APPELLEES ON CROSS-BILL OF COMPLAINT, AND REMANDED.

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


author: WALKER, Justice,

text:
    Larry BAKER, Robert Coleman, Henry Gardner, Calvin Hartzog v. STATE of Mississippi.
    No. 50240.
    Supreme Court of Mississippi.
    May 3, 1978.

      Henry Gardner, pro se.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, WALKER and COFER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from an order overruling and dismissing a petition for writ of error coram nobis. The petition was filed in the Circuit Court of Jefferson Davis County. Without an evidentiary hearing, the court overruled the petition and dismissed it. On appeal, petitioners contend it was error to overrule the petition without conducting an evidentiary hearing.

We affirm the dismissal of the petition, but on different grounds than that of the trial judge.

In their petition appellants contend they were denied effective assistance of counsel when entering their plea of guilty to rape and that their guilty pleas were the product of duress and therefore involuntary. Specifically, they contend that prior to the plea they had all given written statements which were obtained by threats and use of force against them. Additionally they allege that their court-appointed attorney erroneously told them they would face the possibility of capital punishment if they elected to stand trial.

The record in this cause reveals that appellants were represented by counsel when entering their pleas of guilty, and the trial judge conducted a thorough examination of each defendant. as to whether the pleas were knowingly and voluntarily given. Among other things, the trial judge specifically asked if the plea was free and voluntary, to which each defendant replied, “yes.” He then asked if there had been any threats or abuse, to which all replied, “no.”

In a like manner, the trial judge asked if the court-appointed attorneys had advised them of their rights and the significance of pleading guilty. They answered in the affirmative and went on to expressly state that they were satisfied with their legal representation.

When the petition for error coram nobis was considered by the trial court, the only evidence before the judge was the petition and the record made at the time the guilty pleas were taken. In his written opinion, the trial judge impliedly held that the record showed the pleas were voluntary and therefore were conclusive on petitioners.

Appellants contend that they should not be precluded from an evidentiary hearing based on the transcript of the guilty plea hearing alone. In an analogous though different situation, the United States Supreme Court held that federal courts may not adopt a per se rule prohibiting challenge to a guilty plea even though the transcript of the plea on its face shows a voluntary and knowing plea. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1976). That case, however, involved a guilty plea allegedly based on a plea bargain agreement which was not kept. Under that circumstance, the attack was not on the volun-tariness or knowingness of the plea, but rather on the failure of the state to abide by its promise.

We agree with the spirit of Black-ledge, e. g., that there should not be a per se rule prohibiting collateral attack on a plea in all circumstances, simply because the transcript on its face reflects recitation of voluntariness and awareness of the consequence. On the other hand, we are mindful, as stated in Blackledge, that “Solemn declarations in open court carry a strong presumption of verity.” The state, the defendant, and the judicial system all have a significant interest in the plea. For the defendant, if guilty, he can begin serving his sentence without facing the delay and agony of a futile trial. Time is conserved for the state prosecutor and an already crowded court system is spared an unnecessary burden. Balanced against these administrative interests of course is the interest of protecting constitutional rights, particularly in the criminal law area.

Because of these competing interests, we agree that a per se rule excluding collateral attack on pleas facially correct, is not warranted. On the other hand with the need for an end to litigation and conclusiveness of judgment at some point, we must severely limit the circumstance under which an apparently correct plea may be attacked. We have done this to a certain extent in prior cases. In Botts v. State, 210 So.2d 777 (Miss.1968), we held that:

The burden of proof is upon the petitioner on an application for a writ of error coram nobis to establish to a reasonable probability facts upon which he relies for relief. Wheeler v. State, 219 Miss. 129, 155, 63 So.2d 517, 68 So.2d 868, 70 So.2d 82 (1954); 18 Am.Jur.2d Coram Nobis § 26 (1965).

Thus, it is at least clear the burden of proof is on the petitioner. The measure of proof required is that of a reasonable probability.

In the present case, petitioners allege they were under duress because they had previously signed a written statement under threats from law enforcement officials. Balanced against this allegation is that part of the plea transcript whcve defendants expressly denied to the court that they were under any duress to plead guilty. In such a situation the trial judge is confronted with sworn statements made in open court by an accused denying any duress on the one hand, while on the other hand, he has presented to him a petition, unsupported by affidavits of others, by the same person alleging that there was duress. We hold, that in such a situation, the petition fails to rise to the level of a reasonable probability as required by Botts, supra. In order to rise to the required level, the petition of defendants must have attached affidavits of other persons which demonstrate a reasonable probability that the latter allegation is true.

The same analysis, however, does not hold true as to appellants’ second contention. If, as alleged, appellants pleaded guilty under the mistaken advice that they could be subject to capital punishment if convicted at trial, this then, is a factor which may make appropriate a collateral attack on the plea by way of a petition for error coram nobis. Such allegation, if true, indicates that defendants were not fully aware of the implications of their plea nor of the true consequences of a trial by jury. Such a circumstance, if properly pleaded and supported by sufficient facts, makes out a case where relief by petition for error coram nobis may be appropriate. See Dunn v. Reed, 309 So.2d 516 (Miss.1975).

However, we note that such circumstance was not properly pleaded in the original petition for error coram nobis.

Mississippi Supreme Court Rule 38 requires that every application for leave to file in the lower court a petition for a writ of error coram nobis shall have attached to the petition a proposed copy of such petition to be filed “which shall be sworn to by petitioner.” The rule also requires that the petitioner’s affidavit “shall designate specifically what facts, if any, alleged in the petition are within the personal knowledge of petitioner.” Finally, there is the requirement that facts alleged which are not within the personal knowledge of the petitioner must be supported by affidavits of other persons. While this latter requirement (affidavits of other persons) may be excused, it is to be done so only on a showing of good cause. See Brown v. State, 275 So.2d 103 (Miss.1973).

The requirements are not merely mechanical factors, but are based on necessary and sound reasoning. Under our law, the threshold question is whether the petition for error coram nobis makes out a case for relief. In all cases there has already been a conviction or an adjudication of guilty by plea. The remedy of error coram nobis is extraordinary and the effect if granted is to allow an additional evidentia-ry hearing which may result in a new trial. The procedures enunciated above are intended to insure that an additional and extraordinary evidentiary hearing with all the administrative expense and burden will not be mechanically granted, but rather only when justified.

We hold that the above procedures are a prerequisite to a lower court’s granting an evidentiary hearing on a petition for error coram nobis.

In the present case, petitioners neither specifically set out those facts which were in their personal knowledge, nor did they swear to those facts which were alleged as being “within his [their] personal knowledge” as opposed to “on knowledge and belief.” Further, there were no additional affidavits of other parties nor any cause shown why such could not be attached.

For purposes of clarification, we reiterate Supreme Court Rule 38 requiring, among other things, that before this Court or a lower court will entertain a petition for error coram nobis, the original petition must:

(1) Specifically and separately enumerate those facts within the personal knowledge of the petitioner;

(2) Those facts must b,e sworn to on personal knowledge by the petitioner;

(3) For any facts alleged not within the personal knowledge of the petitioner, the petition must state how or by whom these facts will be proven and include the affidavit of the witness who will so testify; and

(4)The above (affidavits of other persons) may be excused upon good cause shown, however the petition must set out in detail for consideration by the Court the alleged “good cause.”

Because of petitioners’ failure to follow the procedures of Mississippi Supreme Court Rule 38, which we hereby hold to be a prerequisite to entertaining a petition for error coram nobis, the judgment of the circuit court dismissing the petition for writ of error coram nobis is affirmed.

AFFIRMED.

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

APPENDIX

MISSISSIPPI SUPREME COURT RULE 38

Every application for leave to file a petition for writ of error coram nobis in the lower court shall have attached thereto the original and two executed counterparts of the petition proposed to be filed in the lower court, which shall be sworn to by petitioner. Petitioner’s affidavit shall designate specifically what facts, if any, alleged in the petition are within the personal knowledge of petitioner. When the petition contains allegations of fact not within the personal knowledge of petitioner, it shall have attached affidavit or affidavits of some other person or persons having knowledge of the facts which are not within the personal knowledge of petitioner. The failure to attach such affidavits of persons other than petitioner may be excused upon good cause shown. The petition shall state when the facts relied upon for issuance of the writ came to petitioner’s knowledge, and shall state sufficient facts to show that there was no want of reasonable diligence on the part of petitioner or his counsel. The petition shall be endorsed by a statement by petitioner’s counsel, if any, that he believes the petition for writ of error coram nobis is well taken, and should be issued. The application shall be supported by a brief, and failure to file a supporting brief may be ground for dismissal. In the event leave is granted to file the petition, the original and one executed counterpart of the petition shall be withdrawn and filed in the lower court.

      . See appendix.


text:
    Micky Ray SMITH v. STATE of Mississippi.
    Misc. No. 850.
    Supreme Court of Mississippi.
    May 3, 1978.
    Micky Ray Smith, pro se.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   ON PETITION FOR APPEAL

EN BANC.

WALKER, Justice,

for the Court:

Micky Ray Smith has filed his pro se petition for appeal and in support thereof alleges that he was tried in the Circuit Court of Jackson County, Mississippi, found guilty of murder, and sentenced to life in the state penitentiary. He admits no appeal was taken therefrom within the time prescribed by law. The petition is denied.

Since the petition for appeal is a relatively new remedy, we take this opportunity to summarize its development.

In Jones v. State, 346 So.2d 376 (Miss.1977), the petitioner on a writ of error coram nobis requested permission to file an appeal to this Court where the time for appeal had expired. He alleged that he had failed to file a timely appeal through no fault of his own but because he could not afford an appeal and his attorney told his family that the Court would not allow him to appeal in forma pauperis. The trial court held, and we agreed, that such relief was not available on a petition for writ of error coram nobis since the trial court had no authority to grant an appeal to this Court. We went on however, to create a new remedy, a petition for appeal, and pointed out that such a petition should be filed in this Court but conforming to Supreme Court Rule 38, the requirements for a petition for writ of error coram nobis. Prior to that time, no remedy for an out-of-time appeal had been allowed.

Subsequently, the petitioner, Jones, filed such a petition. In Jones v. State, Misc.No. 830, 355 So.2d 89 (Miss., 1978), we granted his petition and went on to specify when such a petition was warranted and how the procedure was to be implemented.

We first pointed out that the remedy would be available, “. . . where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.” Jones v. State, Misc.No. 830, 355 So.2d 89 at p. 90 (Miss., 1978).

After finding that the petition was in compliance with the requirements of Mississippi Supreme Court Rule 38, we set forth the procedure to be followed when such a petition is granted. The Clerk of the Supreme Court was directed to send a copy of the petition for appeal to the Circuit Court in which the original trial was held, to be filed therein.

We then specified that:

The trial court shall afford petitioner an opportunity for a hearing within a reasonable time to which the defendant may summons witnesses as in other cases. The purpose of the hearing shall be to determine whether petitioner is an indigent and whether his trial attorney denied him his right to perfect an appeal within the time prescribed by statute through misrepresentation to the petitioner regarding his right to a court-appointed attorney on appeal. If the court finds that the petitioner has not sustained his allegations by a preponderance of the evidence, the court shall order the petition dismissed. An appeal may be had from that order. On the other hand, if the lower court finds that the allegations of the petition have been sustained by a preponderance of the evidence and the petitioner is indigent and has no retained counsel, then the court shall appoint an attorney to represent petitioner on appeal. The court-appointed attorney shall then take all necessary steps prescribed by statute to perfect an appeal from the original judgment of conviction within the time allowed by law, such time to run from the date of the court’s order appointing such attorney.
A copy of the petition for appeal together with this order shall be sent by the Clerk of this Court to the district attorney and circuit judge, or senior circuit judge, if more than one, where petitioner was convicted.
This procedure shall operate prospectively only and shall not be available to defendants whose petitions are not presently pending before this Court.

In promulgating the procedures, we expressly stated that the remedy “shall operate prospectively only and shall not be available to defendants whose petitions are not presently pending before this Court.”

The present case was tried to the lower court on July 11, 1977. The latter Jones’ case was decided on February 5, 1978, and this petition was filed on March 1, 1978. Thus, the trial took place before the Jones’ ruling which is prospective only, and the petition was not pending when Jones was decided. For this reason, the petition is denied.

PETITION FOR APPEAL DENIED.

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


text:
    Thomas E. HORNADAY, Jr. v. Sherry B. HORNADAY.
    No. 50263.
    Supreme Court of Mississippi.
    May 10, 1978.
    Barnett, Montgomery, McClintock & Cunningham, Ross Barnett, Jr., Jackson, for appellant.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ., and JOHN C. LOVE, Jr., Commissioner.
   AFFIRMED.


text:
    Joe KIRKLAND, d/b/a Carpet Cleaners of Mississippi v. WOODS-TUCKER FINANCIAL CORPORATION.
    No. 50262.
    Supreme Court of Mississippi.
    May 10, 1978.
    Danks, Craig & Moss, Ben J. Piazza, Jr., Dale Danks, Jr., Jackson, for appellant.
    Roy D. Powell, Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.


text:
    Charlie EWING v. The HARVEY CHAIR COMPANY and St. Paul Fire & Marine Insurance Company.
    No. 50313.
    Supreme Court of Mississippi.
    May 10, 1978.
    Mitchell, McNutt, Bush, Lagrone & Sams, Wade H. Lagrone, Tupelo, Sam M. Reedy, Fulton, for appellant.
    Mitchell, Rogers, Eskridge, Voge & Clayton, Claude F. Clayton, Jr., Tupelo, for ap-pellees.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    Alma C. McCOY v. Jimmy AMIS.
    No. 50310.
    Supreme Court of Mississippi.
    May 10, 1978.
    Rehearing Denied May 24, 1978.
    Laurel G. Weir, Philadelphia, for appellant.
    Leon Mangum, Newton, for appellee.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. James FARROW et al.
    No. 50410.
    Supreme Court of Mississippi.
    May 10, 1978.

      William G. Kemp, Holly Springs, for appellant.
    Fant, Crutcher, Moore & Spencer, William C. Spencer, Holly Springs, for appellee.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    Mrs. Montye T. PARKER v. Delmar R. JACKSON, Individually and as Executor of the Estate of Lavina Maude T. Jackson, Mrs. Sara G. Thompson, and D. F. Calfee, Administrator with Will Annexed of the Estate of Max W. Thompson, Deceased.
    No. 50277.
    Supreme Court of Mississippi.
    May 10, 1978.
    Butler, Snow, O’Mara, Stevens & Canna-da, James L. Martin, Herbert C. Ehrhardt, Jackson, for appellant.
    McLaurin, Nicols & Kelly, John C. McLaurin, Jr., Brandon, Paul Henderson, Pearl, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, LEE, BOWLING and COF-ER, JJ., concur.


text:
    Quinnie Perry CHEW v. STATE of Mississippi.
    No. 50462.
    Supreme Court of Mississippi.
    May 10, 1978.
    John C. Webb, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, LEE, BOWLING and COF-ER, JJ., concur.


text:
    James H. GLADNEY v. STATE of Mississippi.
    No. 50486.
    Supreme Court of Mississippi.
    May 10, 1978.
    Rufus A. Ward, Jr., West Point, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, LEE, BOWLING and COF-ER, JJ., concur.


text:
    Hilda HARDY v. James HARDY.
    No. 50267.
    Supreme Court of Mississippi.
    May 10, 1978.
    James G. McIntyre, Jackson, for appellant.
    Tighe & Ross, B. Stirling Tighe, Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED ON CROSS-APPEAL AND REMANDED WITH DIRECTIONS.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, LEE, BOWLING and COF-ER, JJ., concur.


text:
    Dan Terry GRIFFIN and Larry Hammett v. STATE of Mississippi.
    No. 50470.
    Supreme Court of Mississippi.
    May 10, 1978.
    Joe Meng, John R. Junkin, II, Natchez, for appellants.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, LEE, BOWLING and COF-ER, JJ., concur.


author: LEE, Justice,

text:
    STATE of Mississippi v. Clifford RUSSELL.
    No. 50378.
    Supreme Court of Mississippi.
    May 10, 1978.

      A. F. Summer, Atty. Gen. by W. D. Coleman, Deputy Atty. Gen., Jackson, for appellant.
    White & Morse, George E. Morse, Gulf-port, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Clifford Russell was indicted, tried and convicted in the Circuit Court of Harrison County on the charge of selling a security without having first taken proper action to secure an exemption or certificate of authority from the Secretary of State of Mississippi in violation of Mississippi Code Annotated Section 75-71-31 (1972) (felony). After return of the guilty verdict, appellant filed a motion for new trial, and, in the alternative, motion for judgment notwithstanding the verdict. The trial judge sustained the motion for judgment notwithstanding the verdict, which resulted, in the acquittal of Russell, and the State of Mississippi appeals here.

The State contends that the court erred in sustaining the motion of the defendant, Clifford Russell, for judgment of acquittal notwithstanding the guilty verdict, and that the case should be reversed and remanded to the trial court for imposition of sentence. Appellee argues that the only statutory provision for the State to appeal is Mississippi Code Annotated Section 99-35-103(b) (1972) which authorizes the State to appeal in a criminal case for decision of law questions only.

There is no factual dispute involved in the instant case. The evidence is uncontro-verted that Clifford Russell was acting as a representative of Russell Finance Corporation in the sale of the security (a negotiable promissory note) referred to in the indictment. It is not challenged that the sale took place by Russell when no action had been taken to secure an exemption and was consummated at a time when no certificate of approval for the sale of such security had been issued by the Secretary of State of the State' of Mississippi. The proof showed that Russell Finance and Clifford Russell were engaged in investment activity.

I.

Is it a violation of the provisions of Chapter 71 to sell or issue a negotiable promissory note without having first obtained a certificate of exemption from the Secretary of State?

The pertinent statutes applicable to the felony charge are Mississippi Code Annotated Section 75-71-31 (1972), which provides:

“It shall be unlawful for any investment company or dealer or representative thereof, either directly or indirectly, to sell or cause to be sold, or offer for sale, any stocks, bonds or other securities (except as expressly exempted herein and proper action has been taken to secure said exemption) unless and until said secretary of state has approved thereof and has issued his certificate in accordance with the provisions of this chapter, . . ”

and Mississippi Code Annotated Section 75-71-51 (1972), which provides, in part:

“The provisions of this chapter shall not apply to any of the following classes of securities (exempt securities). Any issuer, investment company, or licensed Mississippi dealer may obtain a certificate of exemption, under the provisions set out above, upon the submission of an application, under oath, to the secretary of state. The request for a formal exemption may be submitted by the issuer, investment company, dealer, or its counsel, upon a form furnished by the secretary of state. The issuance of a formal certificate of exemption by the secretary of state shall be prima facie evidence that said securities are exempted from the qualifications and registration provisions of this chapter.”

Subsection (8) describes as an exempt security “negotiable promissory notes or commercial paper.”

In Section 75-71-31 “proper action” to secure the exemption is not defined. The State contends that this section refers to Section 75-71-51 which sets out the proper action to be taken, to-wit, submitting an application, under oath, to the Secretary of State for a certificate of exemption. Yet, Section 75-71-51 states that the provisions of the chapter shall not apply to any of the classes of securities enumerated therein, which include the promissory note such as the one here sold by appellant. The section further sets out that the issuer, investment company, or dealer may obtain a certificate of exemption and that the request for formal exemption may be submitted upon a form- furnished by the Secretary of State. The first paragraph then concludes with the statement that the issuance of a formal certificate of exemption by the Secretary of State shall be prima facie evidence that the securities are exempted.

Chapter 71, which contains all sections of the Blue Sky Laws, authorizes the Secretary of State to adopt regulations for the enforcement of the act, and the rules and regulations promulgated by the Secretary of State specify that obtaining a certificate of exemption and the occupational certificate is a requirement under Section 75-71-51 for the sale of exempt securities. However, the authority to define crimes and provide the punishment therefor is vested exclusively in the Legislature, and it may not delegate that power expressly or by implication nor may an administrative agency enlarge the criminal liability of the statute. Howell v. State, 300 So.2d 774 (Miss.1974). Also, penal statutes are interpreted strictly against the State and are construed liberally in favor of an accused. Ratcliff v. State, 234 Miss. 724, 107 So.2d 728 (1958).

The apparent purpose of the Blue Sky Laws is to protect the public against fraud, but it is also clear that the Legislature did not intend to place an undue restriction on commercial business. As stated above, Section 75-71-31 did not define “proper action” in obtaining the exemption. The fact that appellee acquired or executed the negotiable promissory note may be sufficient to fulfill the intent of the Legislature that the exemption attached. On the other hand, the intent of the Legislature could be expressed to mean that, if a person negotiating the security failed to obtain a certificate of exemption, the burden of proving it exempt rested upon him. The intent of the Legislature could be further expressed that, by obtaining a formal certificate of exemption (prima facie evidence that the security was exempt), the burden of proof shifted to any person challenging that exemption.

We hold that under the undisputed facts of this case, appellee was not in violation of Chapter 71, and specifically, Section 75-71-31.

II.

May the circuit court entertain and grant a judgment notwithstanding the verdict of guilty in a criminal case?

At the conclusion of the State’s evidence, appellee moved for a directed verdict of not guilty which was overruled. The motion was renewed at the conclusion of all the evidence and was overruled. The jury returned a verdict of guilty, and, after discharging the jury, motion for judgment notwithstanding the verdict of guilty was sustained by the court, and appellee was acquitted.

The State contends that a motion for judgment notwithstanding the verdict of guilty is unknown to the criminal law of Mississippi. We find no Mississippi statute dealing with judgment(s) notwithstanding the verdict either in criminal or civil procedure, but it is common knowledge that a motion for judgment notwithstanding the verdict is established practice in the trial of civil cases. At common law, judgment notwithstanding the verdict was inapplicable to criminal cases chiefly for the reason that such judgments were entered on the pleadings and a verdict of acquittal ended the prosecution, even though acquittal was founded on misdirection of the judge. 24 C.J.S. Criminal Law § 1579 (1961).

“A motion for judgment notwithstanding the verdict is but a renewal of a motion for directed verdict or for judgment of acquittal made at the conclusion of the presentation of the evidence at the trial, and its scope is no greater than that of the former motion. Consequently, in passing on a motion for judgment notwithstanding the verdict, the trial court is governed by the same rules as in passing on a motion for a judgment of acquittal. Furthermore, a motion for judgment notwithstanding the verdict of conviction may be allowed only if a motion for directed verdict or for judgment or acquittal should have been allowed at the conclusion of the evidence at the trial.” 24 C.J.S. Criminal Law § 1579, at 548 (1961).

In Agregaard v. Duncan, 252 Miss. 454, 173 So.2d 416 (1965), the Court said:

“A judgment notwithstanding the verdict has the same effect as a directed verdict, and the same rules as to the scope of appellate review apply: The subsequent sustaining of a motion notwithstanding the verdict amounts to nothing more than a correction of the court’s error in refusing a requested peremptory instruction. The evidence must be treated as proving every fact favorable to the plaintiffs’ case which is shown either directly or by reasonable inference.” (Emphasis added) 252 Miss. at 457, 173 So.2d at 417.

Judgment notwithstanding the verdict was entered in Grice v. Central Electric Power Ass'n, 230 Miss. 437, 92 So.2d 837 (1957), and the Court stated:

“It is also unnecessary to cite the decisions supporting the well-established rule that in determining whether the defendant is entitled to a directed verdict, the evidence must be treated as proving every fact favorable to the plaintiff’s case which is established either directly or by reasonable inference, . . . The same rule applies to a motion for a judgment notwithstanding the verdict.” (Emphasis added) 230 Miss. at 451, 92 So.2d at 839.

This Coürt has held that in a civil case the trial court may reassemble the jury, after it has been discharged, for the purpose of returning a proper verdict. [Mississippi Central Railroad Company v. Roberts, 173 Miss. 487, 160 So. 604 (1935); Maclin v. Bloom, 54 Miss. 365 (1877)], and that a trial judge has the authority in a criminal case to reassemble the jury even after it had separated and to direct the jury to reconsider its verdict when satisfied that there had been a palpable mistake. Anderson v. State, 231 Miss. 352, 95 So.2d 465 (1957). It was further held in Jarman v. State, 178 Miss. 103, 172 So. 869 (1936), that it is not necessary in a criminal case to go through the formality of having a jury retire and actually find the verdict directed. The court would enter the judgment as if the jury had returned a verdict of not guilty.

In State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965), Desolee Thornhill was tried on an indictment charging her with murder, and after the State rested its case, the defendant moved for a directed verdict of acquittal which motion was overruled. The defendant offered no testimony, the jury was unable to agree and was discharged. The defendant then moved for a directed verdict of acquittal, which was granted by the trial judge, and the State appealed. This Court said:

“We are of the opinion that the trial judge was authorized to sustain a motion and direct a verdict acquitting the defendant and having done so the order of the court protects the defendant from future prosecutions for the crime for which she was acquitted.” 251 Miss. at 726, 171 So.2d at 312.

We have held that, in the trial of civil cases on close questions of law and fact, the trial judge should not grant a directed verdict or request for peremptory instruction, but should submit the case to the jury, and, if, after verdict, the judge thinks the directed verdict or peremptory instruction should have been granted, a motion for judgment notwithstanding the verdict could then be sustained. Claiborne v. Greer, 354 So.2d 1109 (Miss.1978).

It is elementary that a directed verdict, peremptory instruction and judgment notwithstanding the verdict cannot be granted to the State in a criminal case, but we see no sound reason why a motion for judgment notwithstanding a verdict of guilty should not be as applicable in criminal cases as a judgment notwithstanding the verdict in civil cases.

As previously stated, a motion for judgment notwithstanding the verdict is a renewal of the motion for directed verdict after the jury verdict, and the same principle of law applies to it as applies to the motion for directed verdict and request for peremptory instruction.

We, therefore, hold that the filing of a motion for judgment notwithstanding the verdict of guilty and action thereon by a trial judge is a proper procedure in criminal practice in this state.

AFFIRMED.

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


text:
    David JONES v. STATE of Mississippi.
    No. 50497.
    Supreme Court of Mississippi.
    May 10, 1978.

      Earl Denham, Henry R. Mitchell, III, Ocean Springs, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

David Jones was indicted, tried and convicted of armed robbery in the Circuit Court of Jackson County, and was sentenced to nine (9) years in custody of the Mississippi Department of Corrections. He appeals and assigns the following as errors committed in the trial below:

(1) The lower court erred in overruling appellant’s motion to suppress.

(2) The lower court erred in overruling appellant’s motion for directed verdict at the conclusion of the State’s evidence.

(3) The verdict was contrary to the overwhelming weight of the evidence.

(4) The lower court erred in refusing appellant’s jury Instruction No. 6.

Appellee, State of Mississippi, filed a cross-assignment of error and contends that the trial court erroneously excluded an oral confession which was freely and voluntarily given by appellant and which was offered by the State as direct evidence of appellant’s guilt of the crime charged.

On the night of September 26, 1976, Paul Frutelle, an employee of the Trackside Service Station in Ocean Springs, was approached by a person at the unlighted rear of the station who asked him, “Do you see what I got?” Frutelle recognized that the man was holding a gun, he demanded money from Frutelle, took approximately forty dollars ($40.00) from him, and ran into the bushes behind the station. Frutelle was unable to identify his assailant as David Jones because of dim light. He was able to give the approximate size of the robber who had a large gun which Frutelle thought to be a .45 caliber pistol.

The police department was notified of the robbery and Detective Kevin Alves conducted an investigation. Several days later, a confidential informant advised Alves that he heard Jones admit the crime. Detective Alves saw Jones driving an automobile on a city street and stopped him. At that time, Alves had a John Doe arrest warrant. Alves advised appellant of his constitutional rights and informed him that he was suspected of an armed robbery. Jones voluntarily gave Alves permission to search the vehicle and a .22 caliber revolver and a .177 caliber pellet gun on a .45 caliber frame were found. Jones was placed under arrest for carrying concealed weapons and was taken to the Ocean Springs Police Department by Officer Guillott, who had arrived to assist Detective Alves. Jones again was advised of his constitutional rights at the police station in the presence of Captain Billy Thigsten. He freely and voluntarily signed a waiver of rights form, and then made a statement to Alves in his own handwriting, which statement follows:

“I decided to come over to O.S. for awhile, and when I come over I went to Bubbers. I was there about twenty minutes and then I went out to the car and I met the girl. So I talked to her about one hour and then I took her home, and I was there about fifteen minutes, and so I left and went down the road and parked my car over at the parts store and I walked over, told him to give me the money, so he did and I left and went back home and that is how it was the 26th day of September, 1976. The reason why I did it was because I went crazy or something. I don’t know what happened and after it were over I got upset and I were never nervous so I didn’t know what to do. I start to take it back, but I were ashamed so that’s the way it was.”

The only witness introduced by appellant was Mrs. Rosalie Hayse, mother of appellant’s girlfriend. She established an alibi for him.

I.

Did the lower court err in overruling appellant’s motion to suppress the statement by appellant?

Two elements are necessary to establish probable cause in order to arrest an individual without a warrant: (1) determination that a felony has been committed, and (2) reasonable grounds to suspect and believe the person proposed to be arrested committed the felony. McCollum v. State, 197 So.2d 252 (Miss.1967); Clanton v. State, 242 Miss. 734, 137 So.2d 180 (1962). The confidential informant told Detective Alves that he heard appellant admit he committed the robbery. Alves testified that the informant was reliable and trustworthy and that the informant had given him accurate and reliable information on two other occasions which led to the apprehension of criminals. In McCollum, this Court set out the following statements found in annotation to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, 1736-1739 (1959):

“ ‘Probable cause’ or ‘reasonable grounds’ justifying an arrest without warrant exist where the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a narcotics offense has been or is being committed. It is not required that probable cause be established solely by facts within the personal knowledge of the arresting officer. A combination of information and personal knowledge may raise the inference beyond opinion, suspicion, and conjecture to reasonable probability. All information in the agent’s possession, fair inferences therefrom, and observations made by him are pertinent.” 197 So.2d at 255.

Appellant was stopped and was told the reason for his detention, even though he was not told in actual words that he was under arrest. We conclude that the officers’ action was authorized and legal. Further, the evidence is undisputed that Detective Alves asked appellant, if he might search the automobile, and appellant voluntarily consented to such search. A .22 caliber pistol and a .177 caliber pellet gun were found and were introduced in evidence. On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, reh. den. 344 U.S. 848, 73 S.Ct. 5, 97 L.Ed. 659 (1952).

The motion to suppress was correctly overruled and the guns and the written statement were properly admitted in evidence.

II.

Did the trial court err in overruling appellant’s motion for directed verdict at the conclusion of the State’s evidence?

III.

Is the verdict of the jury contrary to the overwhelming weight of evidence?

Appellant entered a motion for directed verdict at the conclusion of the State’s evidence which was overruled, and he renewed the motion at the conclusion of all the evidence. We consider the motion in Assignment No. II as being made at the conclusion of all evidence.

In passing on a motion for directed verdict, the trial court considers as true the evidence most favorable to the State together with all reasonable inferences drawn from the evidence, and, if they will sustain a verdict of guilty, the motion must be overruled. Lee v. State, 338 So.2d 395 (Miss.1976); Glass v. State, 278 So.2d 384 (Miss.1973).

Unless the verdict is opposed by a decided preponderance of the evidence or is based on no evidence whatever, the verdict will be allowed to stand. Kitchens v. State, 300 So.2d 922 (Miss.1974). Appellant wrote and signed a voluntary statement that he was in Ocean Springs on September 26, 1976, that he parked his car at a parts store, and that he took the money. There is no evidence to indicate that any other or different robbery occurred in Ocean Springs on that date or that appellant committed any other robbery, and the jury was warranted in believing from all the evidence that appellant robbed Paul Frutelle on said occasion.

The facts, circumstances and inferences constituted a guilt question for the jury and the motion for directed verdict was properly overruled. Likewise, the verdict was not contrary to the overwhelming weight of the evidence.

IV.

Did the trial court err in refusing appellant’s jury Instruction No. 6?

Instruction No. 6 is the two-theory instruction [See Appendix], It should not be given except in a purely circumstantial evidence case. King v. State, 315 So.2d 925 (Miss.1975); Kitchens v. State, 300 So.2d 922 (Miss.1974). The present case is not entirely circumstantial because the statement of appellant is probably the strongest part of the evidence. The jury was fully instructed on the law of the case and the burden of proof required by the State before a guilty verdict could be returned. The court did not err in refusing Instruction No. 6.

CROSS-APPEAL

The State contends that the trial court erroneously excluded an oral confession freely and voluntarily made by appellant prior to his written confession, and appeals from the adverse ruling, pursuant to Mississippi Code Annotated Section 99-35-103(c) (1972), to settle the question of law.

After appellant was fully advised of his constitutional rights, he made an oral statement to Detective Alves wherein he said that he had had a few drinks, engaged in an argument with his girlfriend, left her home, parked his automobile at the parts store, saw Mr. Frutelle standing near the rear of the service station, walked over to him and demanded his money, took the money, walked back to his vehicle, left and bought more liquor. He further stated that he used the pellet gun during the robbery. Objection was made to the oral statement on the ground of hearsay, and the court ruled it inadmissible, assigning the following reasons:

“BY THE COURT: Now, if it was reduced to writing, that’s what I’m saying, I have already heard that on the Motion to Suppress, and I ruled that it was admissible on the Motion to Suppress here this week. This is out of the presence of the jury, but I ruled on that this week. It was a statement voluntarily made. His rights had been given him, all his constitutional right, before he made the statement, and that it was admitted, and I allowed it to be admitted in that motion and if the State would offer it now, I will rule on it at this time, the written statement. And it will stand on whatever it is, but what I am holding is that you can’t bolster a written statement by giving oral testimony or oral confession to bolster it, because if it is a statement, it ought to be in its entirety with his statement of confession. All right, go ahead. Let the jury be brought back. Bring the jury back.”

The trial court apparently had in mind the parol evidence rule in holding that the oral confession was inadmissible. All voluntary statements or confessions of the defendant are admissible when offered by the State for what weight they may have in the case. Gilmore v. State, 225 Miss. 173, 82 So.2d 838 (1955); Hemphill v. State, 222 Miss. 516, 76 So.2d 512 (1954). The written statement made by appellant in his own handwriting was in addition to the oral confession made to Detective Alves. See Bankston v. United States, 433 F.2d 1294 (5th Cir.1970), wherein the Court said:

“Bankston also complains of the admission in evidence of oral statements made by him to FBI agents. This seems to be based on his assumption that to be admissible, such statements must be in writing. That, of course, is not the law; and the trial records shows that a Jackson v. Denno (1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908) type hearing was held at which a showing was made that the oral statements to officers were preceded by full warnings in compliance with the standards of Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The brief does not urge that the statements were coerced.” 433 F.2d at 1295.

The trial court erred in sustaining an objection to the oral confession.

AFFIRMED ON DIRECT APPEAL; REVERSED ON CROSS-APPEAL.

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

APPENDIX

“INSTRUCTION NO. 6

The Court instructs the jury that if there may be a fact or circumstance in this cause susceptible of two interpretations, one favorable and the other unfavorable to the accused, when the jury has considered such fact or circumstance with all other evidence, there is a reasonable doubt as to the correct interpretation, then you, the jury, must resolve such doubt in favor of the accused, and place upon such fact or circumstance the interpretation most favorable to the accused.”


author: ROBERTSON, Presiding Justice,

text:
    MISSISSIPPI PUBLIC SERVICE COMMISSION, Appellant-Cross Appellee, v. MISSISSIPPI VALLEY GAS COMPANY, Appellee-Cross Appellant, Greenwood Utilities Commission, City of Clarksdale, and Yazoo City Public Service Commission, Appellees.
    No. 50254.
    Supreme Court of Mississippi.
    May 10, 1978.
    Bennett E. Smith, Asst. Atty. Gen., Jackson, Hall, Callender & Dantin, Maurice Dantin, Columbia, for Miss. Public Service Comm.
    Overstreet & Kuykendall, John M. Kuyk-endall, Jr., Carson M. Hughes, Jackson, for Miss. Valley Gas Co.

      Lott, Sanders & Gwin, Hardy Lott, Greenwood, Sullivan, Smith, Hunt & Vick-ery, David R. Hunt, Clarksdale, Campbell & Campbell, T. H. Campbell, Jr., Yazoo City, William Thomas Miller, Washington, D. C., for Greenwood Utilities, City of Clarksdale and Yazoo City Public Service Comm.
    Before ROBERTSON, LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Mississippi Public Service Commission has appealed from that portion of a final decree entered by the Chancery Court of the First Judicial District of Hinds County, Mississippi, on April 12, 1977:

1. Reversing the May 6, 1976, Order of the Commission which fixed the rate of return for Mississippi Valley Gas Company at 8.83%; and

2. Remanding the case to the Commission for further hearing after the Commission has furnished certain information to the Company. Specifically the information required was the data fed into, the questions asked, and the tasks assigned to, a giant computer at the University of Chicago, which computer produced the CRISPE tapes, the tapes used by Dr. James L. Bick-sler, the Commission’s only witness, as the sole basis for his expert opinion as to what constituted a fair and reasonable rate of return to the Company.

The Company has cross-appealed from that portion of the final decree affirming the Commission’s order, which:

1. Required the Company to file a revised rate schedule “for municipal generating facilities Rate Schedule # 110 in order that it conform with the lowest block (of charges) of Schedule # 108”;

2. Eliminated the $300 monthly facility charge made against the Greenwood Utilities Commission, the City of Clarksdale, Mississippi, and the Yazoo City Public Service Commission; and

3. Provided that “Rate Schedule # 111 shall hereafter be the same as Rate Schedule # 110, . . .”.

This appeal presents three major issues for determination by this Court:

(1) The discovery issue;
(2) The rate of return issue; and
(3) The municipal electric generating rate issue.

On November 25,1975, Mississippi Valley Gas Company filed with the Commission its schedule of proposed gas rate changes, a statement of the necessity for the proposed changes, and detailed supporting data, as required by Mississippi Code Annotated section 77-3-37 (1972). As provided in Section 77-3-39, the Company posted a refunding bond and placed the new rates into effect on December 26, 1975. Later the Company filed a petition to change to systemwide rates and a systemwide purchase gas adjustment provision. The Company also proposed a $300 per month facility charge, and increased gas rates for municipal electric generating plants operated by the Cities of Greenwood, Clarksdale and Yazoo City.

Greenwood, Clarksdale and Yazoo City intervened and were successful before the Commission, and that portion of the Commission’s Order affecting these three municipalities was affirmed by the Chancery Court.

This Court is of the opinion, as was the chancery court that the Order of the Commission (a) requiring that the rate level of Rate Schedule 110 (Revised) and Rate Schedule 111 “conform with the lowest block of Rate Schedule # 108”; (b) eliminating the monthly facilities charge of $300.00 from Rate Schedule 110 (Revised); and (c) requiring the Company to keep the Commission apprised of gas available for Category 6 customers and when such gas is available, to furnish it “immediately to municipal generating facilities under rates as hereinabove set forth,” is supported by substantial evidence and should be affirmed.

On the rate issue, the Company’s witnesses were its president and chief executive officer, Taylor G. Holland, Jr.; James W. Welch, Jr., senior vice-president and treasurer; E. R. Butler, senior vice-president of operations; Richard S. Johnson, vice-president of Stone & Webster Management Consultants, Inc., of New York; W. G. Randolph, the Company’s director of rates and pipeline supply; Wayne D. Monteau, manager of Financial Analytical Services for Stone & Webster; William A. Whitney, senior vice-president and trust officer .for Deposit Guaranty National Bank; and John H. Geary, vice-president of Paine-Webber.

The Company’s officers testified at length and supplied detailed charts and tables as to the assets, facilities, income and increased expenses of the Company. They testified in detail as to the necessity for increased rates in these times of inflation.

The Commission offered one witness, Dr. James L. Bicksler, Professor of Finance and Director of Research at Rutgers University Graduate School of Business.

Professor Bicksler was employed by the Commission:

“(a) To develop and present written testimony on all essential evidence on rate of return.
“(b) To assist'Commission staff in the cross-examination of Mississippi Valley Gas Company’s witnesses.
“(c) To assist the staff in the preparation of the Commission’s final order and to be available for consultation with the Commission staff as requested.”

Bicksler’s testimony and his opinion as an expert on public utility matters was based entirely on the CRISPE tapes which were produced by a giant computer at the Center for Research and Security Prices at the University of Chicago. It was admitted that no data concerning Mississippi Valley Gas Company was submitted to the computer. Professor Bicksler, in discussing the Capital Asset Pricing Model (CAPM), which was used in the CRISPE tapes, testified:

“Q Would you briefly describe the underlying economic rationale of the capital asset pricing model (CAPM)?
A The basic assumptions underlying the two-parameter capital asset pricing model (CAPM) are:
1. All investors are risk-average and choose portfolios in a manner consistent with maximizing expected utility of single-period terminal wealth.
2. Portfolio investment opportunities can be described solely in terms of means and variances (or standard deviations) of the distribution of expected one-period portfolio returns.
3. Investors have homogeneous expectations regarding means, variances, and covariances of returns for all securities in the investment opportunity set and, in addition, all investors have identical investment opportunity sets.
4. Capital markets are efficient in the sense that borrowing and lending rates are equal. There are no restrictions to short sales, no taxes, no transactions costs, and capital assets are perfectly divisible, etc.
5. The supply of all capital assets is given.

Under these assumptions and other less restrictive conditions, equilibrium relationships for risky capital have been derived. What is important from the viewpoint of public utility regulation is not the assumptions, which are somewhat technical in nature, but the fact that testable hypotheses on risk-return equilibrium can be set forth.”

The word “Beta” is used throughout Professor Bicksler’s testimony. He' defined Beta in this way:

“Q What is beta?

A Beta is the systematic or undiversi-fiable risk of a security. It measures the security’s covariation with market portfolio or index.

Q Would you give an example?
A Yes. If a security has a beta of 1, and the market portfolio had an expected return of 10 percent, then the expected return of the security would be 10 percent.”

When asked the question: Has there been any criticism of the capital asset pricing model (CAPM)? Dr. Bicksler replied:

“A There has been criticism of the capital asset pricing model (CAPM). However, almost all of the criticism has been a result of an attempt to mechanically interpret or apply the results. Further, as in all science, the derived inferences are probabilistic in nature with the ever-present possibility that the presentation of new evidence will result in a modification in the nature of a ‘confirmed’ hypothesis.
Q What are the testable empirical implications about risk-return relationships of the capital asset pricing model (CAPM)?
A The major implications for expected returns of the capital asset pricing model (CAPM) are:
1. Expected returns vary linearly with beta risk.
2. Expected returns are not systematically affected by non-beta measures of risk. In other words, beta is a complete measure of the risk of a security.
3. There is a positive expected return-risk-trade-off (e. g., there is a positive expected risk premium).
Q What do empirical tests of the capital asset pricing model (CAPM) show?
A The empirical tests support the three major implications of the capital asset pricing model (CAPM) and its postulated risk-return relationships enumerated above.
Q Does the CAPM explain expected return-risk relationships perfectly?
A No. The CAPM has been shown to be surprisingly empirically robust. However, as always in scientific work, there are grounds for extending the model in a number of directions.
Q' Put into perspective what the empirical usefulness of the CAPM is.
A The CAPM is empirically more robust then alternative equilibrium valuation scenarios. Further, the CAPM has been shown to have a high degree of explanatory power with regard to prices and yields of equities of public utilities.”

The professor was asked this further question about some of his approaches to “the fair rate of return” problem, and his answer was:

“Q Would you briefly summarize again why your Bayesian approach is relevant for making ‘good’ estimates?
A The Bayesian approach is strictly consistent with the rules of inductive reasoning. Hence, the use of Bayesian framework in the decision problem of estimating the fair rate of return is a rational procedure for systematically and coherently revising one’s initial or prior judgment with the subsequent arrival of further information.”

Prior to the hearing, the Company, on March 30, 1976, pursuant to Mississippi Code Annotated section 11-1-51 (1972), filed a motion to direct and order Dr. Bick-sler to furnish the written material, documents, letters and data fed to the computer, and the questions asked, and tasks assigned, to the computer, for the purpose of cross-examining Dr. Bicksler about the CRISPE tapes. This motion was renewed at the hearing but was denied by the Commission. The questions asked and the answers given by Dr. Bicksler were:

“Q And what did you do? I want to know what you did to get the computer to generate this data.
A I don’t really understand the mechanics of the computer in the sense that, you know, once the cards go in and, you know, there’s an order to the computer, I’m not really that familiar with the mechanics of the computer memory, etcet-era, etcetera, so I can’t answer that.
Q What information did you give to the owner or the holder of the computer, the person who performed this?
A Essentially it’s what’s here on Page 8. Essentially what we wanted to do was derive the risk premium using the methodology we’ve stated, using specific time periods enunciated, utilizing equation one and utilizing as a basic in-put source CRISPE tapes, so all of that was well defined just as I have here on Page 8.
Q And did you fill out a form and tell them what you wanted to have done? Did you writ a letter? How did you do this, how did you communicate to the individual that performed this function?
A We have worked in the past on various things and this was done over the telephone.
Q Tell us what you told this individual on the telephone.
A I don’t have a tape recording of the session but I mean specifically here is the research methodology and, you know, this is the essence of the procedure used to derive the risk premium.
Q Do you have in your possession or is there a document that precisely states what it is that you asked the computer to do that you have?
A No, I don’t.
Q Have you ever had such a document?
A I don’t really understand what you mean by this document.
Q Notes of what you asked the computer.
A You can’t go up to the computer and say, look, I’ve got a list of notes, go do it, so that wouldn’t serve.
Q Well tell us what you said on the telephone to this individual.
BY CHMN DALE:
Let’s go on to something else, Mr. Hughes. I think you’ve been over that three or four times.”
Bicksler further testified:
“Q Do you supervise or direct the construction of the CRISPE tape or the maintenance of those tapes?
A No. The CRISPE tape of the Center for Research and Security Prices is the most comprehensive and reliable data source of security returns in the world. It is an indispensable data file for any modern researcher in the economics of capital markets. The reliability of this data is well established and there’s no need to check on it. I would like further _"

After this illuminating testimony from Professor Bicksler, who was the Commission’s only witness, the Commission was able to make this finding in its order of May 6, 1976:

“The Commission witness testified and the Commission finds that the frameworks employed by the company witness (Mr. Monteau) do not provide rigorous and systematic inferences about the fair rate of return on equity.
The Commission expert (Bicksler) employed the capital asset pricing model which has several well-defined operational hypotheses. The procedure has been subjected to rigorous empirical tests in the light of modern day finance and provided for a specific measurement of risk. There was identification of the relationship between expected returns and risk. Likewise, the Commission expert gave an economic interpretation of the Hope case and found, as this Commission has found, that risk is center-stage of the regulatory rate of return process. The Commission finds that the capital asset pricing model used by the Commission expert is far more reliable than the exercise employed by the company expert and is well recognized in modern finance. The procedure employed by the Commission expert has been subjected to rigorous empirical tests and the witness was thoroughly versed in modern capital market theory and its application and development.”
In its opinion, the chancery court said:
“It is obvious that Dr. Bicksler did not make any study of Mississippi Valley Gas Company itself. Instead, he used a new and quite different approach for the determination of reasonable rate of return, a Capital Assets Pricing Model, or CAPM. It is not the purpose of this Court to pass upon the relative merits of the Commission witness’ new method as against the more traditional approach of the company’s witnesses since the duty, and responsibility, to make such judgments is clearly upon the Mississippi Public Service Commission. But, here, the Commission’s witness, Bicksler, was permitted to give his expert opinion as to what a reasonable rate of return should be, which said opinion was clearly based on facts which were not in evidence, which were available to the said witness, and upon the company’s timely request should have been made available to the company for examination by the company and for its use in the cross examination of the Commission’s witness. The Commission refused to recognize the inherent right on the part of the company to examine the raw data upon which the Commission witness based his expert opinion. Only Dr. Bicksler could know what he used as raw data upon which to base his opinion, what input there was from him to the computer, what the calls were which he made upon the computer for information, and all of the information requested by the company was within the easy order and production by Dr. Bicksler at no personal cost to himself and should have been required by the Commission. . .
In a situation where the rate expert hired by the Commission and relied upon by the Commission did not even make a study of the company in his determination of what a reasonable rate of return for the company would be makes it even more necessary that the closest sort of scrutiny be permitted of his manner and method of calculations and upon what data he based his opinion or used to arrive at his opinion. An extensive cross examination was permitted by the Commission of the said Commission witness running into many hours; nevertheless, where the Commission shielded its witness from having the raw data upon which he based his opinion examined by the company, there was a deprivation of due process and the company’s constitutional rights in this regard were violated. It may very well be that the result which Dr. Bicksler reached is the right and proper one. In the present state of the record there is no way to tell. But insofar as the order of the Commission of May 6, 1976 pertained to the rate of return, and the schedule of rates thereunder, it must be reversed and remanded.”

City of Laurel v. Upton, 253 Miss. 380, 175 So.2d 621, 625 (1965), and Butler v. State, 245 So.2d 605, 607 (Miss.1971), are in accord.

In 1 Pt. 2 Moore’s Federal Practice, Pt. 2.717 at 142 (1977), we find this reasoning:

“It is essential that the underlying data used in the analyses, programs and programming method and all relevant computer inputs and outputs be made available to the opposing party far in advance of trial. This procedure is required in the interest of fairness and should facilitate the introduction of admissible computer evidence. This procedure provides the adverse party and the court with an opportunity to test and examine the underlying data on which the machine analysis is based, the program and all outputs prior to trial. The pretrial ruling on objections can then be made by the court. Without agreement among the litigants, introduction of the computer outputs should be feasible if the party or parties who supervised the data processing testify to the validity of the methods used, the reliability of the computer, the accuracy of the inputs, the validity of the programming and the accuracy and completeness of the outputs.”

As the chancellor stated in his opinion, Dr. Bicksler might have reached the right result, but in the present state of the record there is no way to tell.

Because of the lack of substantial evidence supporting that portion of the Commission’s Order reversed by the chancery court, the decree of the lower court is affirmed on direct and cross appeals, and this cause is remanded to the Commission for discovery of the data requested and any additional evidence that the Commission or Company care to adduce. The Commission should then reevaluate the entire record before rendering its opinion.

AFFIRMED AND REMANDED TO THE COMMISSION.

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


author: EMBRY, Justice.

text:
    CITY OF HOMEWOOD v. STATE of Alabama on the relation of the CITY OF BIRMINGHAM, a Municipal Corporation, and David J. Vann, Individually and in his capacity as Mayor of the City of Birmingham.
    77-103.
    Supreme Court of Alabama.
    April 21, 1978.
    Irvine C. Porter, Birmingham, for appellant.
    James L. North, Frank M. Young, III, Philip W. Norwood, Birmingham, for appel-lees.
   EMBRY, Justice.

These appeals from summary judgments raise the issue of whether property owners, whose properties were the subject of annexation ordinances of the City of Homewood, are indispensable parties to quo warranto actions seeking to invalidate those ordinances.

There are ten separate summary judgments from which these appeals were taken. The judgments were entered in quo warranto actions filed pursuant to Tit. 7, § 1136, Code 1940 (§ 6-6-591, Code 1975), attacking the validity of ordinances of the City of Homewood annexing parcels of real property of owners who petitioned Home-wood to do so pursuant to Tit. 37, § 137(1), Code 1940 (§ 11-42-21, Code 1975). The actions were filed against the City of Homewood; the owners of the respective parcels of real property annexed to the City of Homewood by the various ordinances under attack were not make parties to the actions.

It is the contention of the City of Home-wood that the subject matter of the actions are the properties annexed by the ordinances and thus the owners are indispensable parties to the actions in the absence of which the judgments invalidating the ordinances are prejudicial to them and due to be set aside and held for naught.

The City of Birmingham contends that any claims of the property owners, not parties to these actions, are merely derivative of Homewood’s interests and they do not have a material, legal or beneficial interest in the ordinance by which their respective property was annexed; therefore they are not indispensable parties who must be joined as required by Rule 19 ARCP. Thus Birmingham claims the subject matters of the actions are the ordinances.

It is without dispute that Homewood has a population of more than two thousand. This court would take judicial knowledge of that fact even were it in dispute. City of Hueytown v. Jiffy Chek Company of Alabama, 342 So.2d 761 (Ala.1977). There is no dispute that the properties lay within the police jurisdictions of both Birmingham and Homewood at the time the various property owners petitioned Home-wood to annex their respective properties and at the time each ordinance of Home-wood was adopted annexing each of the properties.

As stated by the trial court in each of its summary judgments: “the determinative issue [as to the validity of the ordinance of annexation] is whether or not the property sought to be annexed lies within the corporate limits or police jurisdiction of any other municipality. State ex rel. City of Birmingham v. City of Tarrant City, 294 Ala. 304, 315 So.2d 583 (1975).” The trial court then held each Homewood ordinance of annexation defective, therefore null and void. This holding was eminently correct. As this court said in City of Tarrant City, supra:

“This court is of the opinion that the legislature intended ‘police jurisdiction’ as used in the proviso to be defined by the objective standard of a three-mile (or mile and a half) limit given in Title 37, Section 9 [§ 11-40-10, Code 1975], and that the legislature intended to prohibit this method of annexation when the proposed lands to be annexed are located within the police jurisdiction of another city. This opinion is consonant with the legislative intent to provide a simple and quick method of annexation. This court does not think the legislature intended by the proviso that a city could annex land which lies within the police jurisdiction of another city by obtaining an adjudication that it had historically performed more municipal services or exercised more control in the area than had the other city. This court holds that the legislature intended by the proviso that in cases of overlapping police jurisdictions, as defined geographically, annexations must follow the conventional procedures.”

The issue of the property owners being indispensable parties was ruled on by the trial court in an order of 21 March 1977.

“ORDER

“This action came on to be heard by the Court on Defendant’s Fifth Defense of its Answer. This defense raises the issue and contention that the owners of land who petitioned the City of Homewood for annexation are indispensable parties.
“Upon consideration thereof, the Court is of the opinion that such owners are not indispensable parties in a quo warranto action of this nature. This is a statutory cause of action and the proper parties are designated by such statute. Title 7, Section 1136 [§ 6-6-591, Code 1975], Code of Alabama, 1940, Recompiled 1958. The City of Homewood is the alleged offending party, not the property owners, and relief is sought only against the alleged offender. Section 1136 states specifically as follows:
“ ‘An action may be brought in the name of the State against the party offending . . . ’
“Under the claim and allegations of the complaint filed here, it is the action of the City complained of and not the property owners.
It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the Defendant’s Fifth Defense of its Answer is hereby denied.”

Homewood argues that the property owners are indispensable parties because the invalidation of the annexing ordinances affects incidents of their ownership of their respective parcels of real property such as: the tax rates involved; the quality of the fire and police protection available; the type of governmental structure in operation in the area within which their properties lie; the planning and zoning agencies having jurisdiction over the properties; the various building, plumbing, electrical and fire codes in effect, and the manner of administering and enforcing them, which would affect those properties.

All of those factors may well be of concern to a property owner but the statutory quo warranto proceedings attacking the validity of the Homewood ordinances annexing the real property have no effect on the legal, equitable, or beneficial title to those parcels of real property. This being the case, complete relief of the nature sought, and granted, is accorded absent the property owners as parties. The property owners can claim no proper interest in the subject matter of the litigation and are not so situated that the disposition of the actions in their absence may as a practical matter impair or impede their ability to protect that interest or leave either Homewood or Birmingham subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of any claimed interests of the property owners. Rule 19(a), ARCP. Indeed, it seems significant that none of the proprty owners whose interests are claimed by Homewood to be so vitally involved sought to intervene in these actions.

In Mead Corp. v. City of Birmingham, 350 So.2d 419 (Ala.1977), this court held that landowners in an area the subject of annexation by both Birmingham and Homewood were not indispensable parties as defined by Rule 19, ARCP. However, we did hold Homewood to be an indispensable party because of its claim to have annexed a portion of the same territory and an adjudication of that claim (the validity of its ordinances effecting annexation) without it present as a party could result in divergent determinations in the Mead action and in a pending action between Homewood and Birmingham as to which city had validly annexed the same territory. The rationale for our holding in Mead, that only Homewood was an indispensable party, is found in that opinion where it reads:

“Our decision is not based upon a determination that the landowners of the twice annexed area are indispensable parties. Any inconsistent obligation they might incur are derivative to the annexation claims of the City of Homewood. Homewood’s claims being primary, from which the claims of others are dependent, only the City of Homewood is an indispensable party.”

That rationale is equally applicable in the cases here before us.

There is no genuine issue of material fact regarding the status of the property owners claimed by Homewood to be indispensable parties to this action. The summary judgments are due to be, and are hereby, affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.