author: ROBERTSON, Justice.

text:
    A. B. HOLMES, Individually and as next friend of Alvin Holmes et al. v. C. W. JONES et al.
    No. 48222.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      Charles H. Ramberg, Brandon, Barry H. Powell, John L. Maxey, II, Jackson, for appellants.
    W. E. McIntyre, Jr., McLaurin & Ni-cols, George T. Kelly, Brandon, Chill, Chill & Dove, Jackson, for appellees.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   ROBERTSON, Justice.

A. B. Holmes and Bobbie D. Mangum, individually and as next friends and fathers respectively of Alvin Holmes and Bobbie Jean Mangum, minors, brought suit in the Chancery Court of Rankin County, Mississippi, against Milton Singletary, Hilton Richardson, R. L. Cross, Tom Rives and Steen Patrick, Supervisors of Rankin County, Mississippi, and the United States Fidelity and Guaranty Company, the surety on their official bonds, and C. W. Jones, for the illegal and unconstitutional leasing of 16th Section school lands to C. W. Jones for a grossly inadequate rental.

The complainants averred in their bill of complaint:

“Minor complainants are educable children residing in Township 3 North, Range 4 East, Rankin County, Mississippi, and are attending public school in the County-Wide School District of Rankin County, the public school district in which said township is located. Adult complainants are inhabitants of said township and are the parents of educable children residing in said township.
“The State of Mississippi holds title to Section 16, Township 3 North, Range 4 East, Rankin County, Mississippi, as trustee for the benefit of the inhabitants and educable children of said township for the support of the public schools therein. Pursuant to state law, the Board of Supervisors of Rankin County acts as agent for the state as trustee of said section in the leasing of said section for the benefit of said educable children and inhabitants.”

The complainants attached to their bill of complaint as exhibits:

1. A copy of an Order of the Board of Supervisors duly and unanimously adopted on January 26, 1970, and recorded on the Board’s official Minutes, authorizing and ordering a 25-year lease of 150 acres of 16th Section land to C. W. Jones for an annual rental of $37.50, being approximately $.25 per acre per year.

2. Copy of the lease, executed on January 26, 1970, by “THE BOARD OF SUPERVISORS OF RANKIN COUNTY, MISSISSIPPI BY (Signed) C. W. Jones, County Superintendent of Education of Rankin County, Mississippi” to himself, C. W. Jones.

The order of the Board of Supervisors, Exhibit “F” to the bill of complaint, recites among other things:

“C. W. Jones having heretofore made application to this Board for a twenty-five year lease of the Sixteenth Section property now owned by said applicant, situated in Section 16, Township 3, Range 4, in Rankin County, Mississippi, . and the Board finds that said property [150 acres] should be leased for a term of twenty-five years from this date, for a ground rental payable annually, in advance, and the County Superintendent of Education of Rankin County, Mississippi concurs therein.
“It is therefore ordered by the Board of Supervisors of Rankin County, Mississippi, that the hereinabove described property be and the same is hereby leased to the said C. W. Jones for a term of twenty-five (25) years from this date at and for a ground rental, payable annually, in advance, the sum of $37.50 per annum and upon the payment of such first annual rental into the County Depository of said County to the credit of the Interest, Fund of Township 3, Range 4, and the execution and delivery by the lessee to the County Superintendent of Education of said County of their notes for the rent thereof for the remaining years of the term of such lease, the County Superintendent of Education of Rankin County is hereby authorized and directed to exenite- unto the said C. W. Jones, a lease, which shall be substantially in the form as adopted by this Board at its April 7, 1969 meeting, as shown by the minutes of this Board of said meeting.” (Emphasis added).

The lease from C. W. Jones, County Superintendent of Education of Rankin County, to C. ,W. Jones, individually, recites :

“By virtue of the authority conferred on me by the order of the Board of Supervisors of Rankin County, Mississippi, and in consideration of the sum of $37.-50 paid unto the County Depository of said County to the credit of the Township Fund, being the annual rental due on said property for one year from this date, and a like annual payment to be made by the lessee on the 26th day of January of each year hereafter during the term of this lease, as evidenced by notes therefor this day executed by said lessee and delivered to the County Superintendent of Education of said County, said Board of Supervisors, acting by and through the County Superintendent of Edtication of said County, hereby lease and lets unto the said C. W. Jones, his heirs, executors, administrators, and assigns, for a term of twenty-five (25) years, .
“If default is made in the payment of any annual rental herein required to be paid, this lease may be terminated by and for the county by the County Superintendent of Education of said county executing and filing in the office of the Chancery Clerk of said county a statement certifying that default had been made in the payment of such rental.” (Emphasis added).

Exhibit “H” to the bill of complaint is a Lease Contract from C. W. Jones as lessor to David Patrick as lessee, of the same 150 acres of 16th section land [less 10 acres, and plus 7 acres in Section 15], for a three-year term for an annual rental of $900. The lease recites:

“The Lessee is to pay as rent therefor as follows:
$900.00 on or before March 15, 1970, and on or before the same date in each succeeding year for the term of this lease.
“This lease is effective from the date stated above and will expire on December 31, 1973, unless renewed by mutual consent of the parties.” (Emphasis added).

The complainants specifically prayed for a judgment against the defendants, jointly and severally, for $18,695.14, (which complainants averred was the value of the 25-year lease at a fair rental of $1,462.50 per year, discounted at 6% per annum), and also for general relief.

The chancellor sustained general demurrers, one filed by the Supervisors and one filed by C. W. Jones, on March 1, 1974, to the bill of complaint.

Complainants contend on this appeal that the Chancery Court erred in sustaining general demurrers to their bill of complaint. We agree.

As correctly stated in the bill of complaint, Sixteenth Section school lands are trust lands to be administered for the benefit of the inhabitants and educable children of the township for the support of the public schools therein.

Mississippi Code Annotated section 29-3-1 (1972) provides:

“The county hoards of supervisors of the several counties wherein there are situated any sixteenth section school lands or lands in lieu thereof, under the general supervision of the state land commissioner, shall have control and jurisdiction of said school lands and of all funds arising from any disposition thereof heretofore or hereafter made. All such funds shall be paid into the proper depository, and all notes, bonds, and other securities for the same, evidencing loans or other investments thereof, shall be turned over to the county depository and duly collected as provided by law.” (Emphasis added).

The Legislature in 1974 amended Section 29-3-1, inserting this proviso:

“[Pjrovided, that no action of any board of supervisors with regard to the leasing of sixteenth section lands, or lands in lieu thereof, shall be valid unless approved by a majority of the membership of the board of trustees of the school district or districts in which the section or portion thereof proposed to be leased is located.”

This amendment did not take effect until March 14, 1974, which, of course, was four years after the acts complained of in the case at bar.

Mississippi Code Annotated section 29-3-57 (1972) provides:

“The county superintendent of education shall keep a current docket as to the expiration date of all leases on sixteenth section lands; likewise, he shall keep a correct current docket upon the existing leases or any extensions thereof as to the amounts and time of payment of rentals provided for by such lease. It shall be the duty of the county superintendent of education to collect promptly all rentals due and all principal and interest due upon loans and investments of sixteenth section funds, . . . . It shall be the duty of the county superintendent of education to supervise generally the administration of all sixteenth section lands within his jurisdiction.” (Emphasis added).

In State ex rel. v. Dear et al., 209 Miss. 268, 46 So.2d 100 (1950), we said:

“This Court held in the case of Rice et al. v. McMullen, [207 Miss. 706,] 43 So. 2d 195, 202, not yet reported in State Reports, as follows: ‘It is well established that the rights of a beneficiary of a trust estate who finds the trust property has been wrongfully transferred to a third party with notice of the trust are clearly defined in law, and are without dispute so far as we know. Such a beneficiary has the right to follow the trust property and to recover the res if he can identify it in the hands of the third party, or he can have judgment against the third party for the value of the trust property. Scott on Trusts, Sections 291.2, 291.7; [4] Bogert on Trusts, and Trustees, § 867.’ ” 209 Miss, at 277, 46 So.2d at 103.

The complainants,, representing the beneficiaries of this trust estate, were proper parties to bring this suit.

The bill of complaint on its face shows that C. W. Jones, County Superintendent of Education of Rankin County, Mississippi, acting in a fiduciary capacity, violated a solemn trust and executed a 25-year lease of the trust property to himself for a grossly inadequate consideration of $37.50 a year for 150 acres of trust lands.

A fiduciary cannot take advantage of his position of trust in administering the estate entrusted to him. The intent of the Legislature is unmistakeably clear in the general law on this subject.

Mississippi Code Annotated, sections 91-7-253 and 91-7-255 (1972) provide:

“No executor, administrator, guardian, receiver, or other fiduciary appointed by or acting pursuant to the authority of any chancery court may borrow or use for his own benefit, directly or indirectly, any of the funds or property of the estate committed or intrusted to him by such court, nor purchase or acquire, directly or indirectly, any interest therein adverse to any creditor or beneficiary of such estate. Nor may he loan the same, or any part thereof, to any parent, brother, sister, son, daughter of, or one in loco parentis to the ward or himself, nor to any attorney or agent representing him or such estate, nor to the wife or any child of such attorney or agent. Nor may any court or chancellor authorize or ratify any such prohibited use, acquisition, or loan.” (Emphasis added).
“No executor, administrator, guardian, receiver, or other fiduciary appointed by or acting pursuant to the authority of any chancery court may sell, assign, or transfer any note, bill of exchange, bond, stock certificate, or other negotiable paper belonging to the estate committed or intrusted to him by such court, unless he shall be authorized so to do by an order of the court or chancellor, or by the last will and testament of the decedent. Every such prohibited sale, assignment, or transfer shall be void, whether the vendee, assignee, or transferee shall have had notice or knowledge of the want or lack of authority of such fiduciary to sell, assign, or transfer the same or not.” (Emphasis added).

The averments of the bill of complaint and the exhibits thereto clearly show a good cause of action against each member of the Board of Supervisors, the surety on their bonds, and C. W. Jones. The lease of January 26, 1970, from C. W. Jones, County Superintendent of Education of Rankin County, to C. W. Jones individually was void on its face. The lease contract from C. W. Jones to David Patrick, providing for the payment of an annual rental of $900, beginning March 15, 1970, (less than two months after the execution on January 26, 1970, of a lease of substantially the same sixteenth section school land by C. W. Jones, County Superintendent of Education, to C. W. Jones, individually, for $37.50 annual rental) shows on its face that the lease to Jones was for a grossly inadequate consideration amounting to a donation of public property to a private individual, in clear violation of Section 95 of the Constitution of the State of Mississippi, which provides in part:

“Lands belonging to, or under the control of the state, shall never be donated directly or indirectly, to private corporations or individuals, or to railroad companies.” (Mississippi Constitution Article 4, §95).

The bill of complaint also states a prima facie case against all the defendants for the recovery of the difference between the $900 annual rental and the $37.50 annual rental for each of the three years of the lease from Jones to Patrick, plus legal interest.

The decrees of the chancery court sustaining the general demurrers to the bill of complaint are reversed and this cause remanded for a trial on the merits.

Reversed and remanded.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ronald H. ALDRIDGE v. Frank JOHNSON et ux.
    No. 48306.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      Riddick & McCoy, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, John B. Clark, Jackson, Herring & Herring, Canton, for appellees.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   ROBERTSON, Justice.

Appellant, Ronald H. Aldridge, appeals from a judgment for $7,000 rendered against him in the Circuit Court of the First Judicial District of Hinds County and in favor of Frank Johnson and his wife, Francis L. Johnson.

About 4 o’clock p. m. on March 24, 1973, appellant Aldridge was proceeding in a westerly direction on two-laned asphalt-paved State Highway 16 between Carthage and Canton. It had been raining quite hard and the wind had been gusting, but at 4 o’clock only a light rain was falling. Appellant had his headlights and windshield wipers on. As he approached the Farmhaven community in Madison County, he passed a highway sign on which there was printed “SLOW TO 45”. On the same post was a highway sign' indicating an intersection. To the west of the two highway signs, the highway was straight and level and had double yellow lines painted down the center. At the intersection of highway 16 and a county road going north and south, there was a country store with a rather large GULF sign on an iron post, and gas pumps in front of and to the east of the store proper.

Attached to the east side of the store was a mobile trailer home, in which appel-lees, Frank Johnson and his wife, lived. An asphalt apron extended from highway 16 to the entrance to the store and trailer hofne.1..1

Aldridge testified that as he approached the intersection he was driving 55 to 60 miles an hour, that no cars were in front of him and that he was in his proper lane, but that for some unknown reason his car began to skid sideways on the wet asphalt and he lost control. His car ran off of the north side of the highway, the right side hit the iron post with the Gulf sign on it, and the rear end of the car swung around and hit the west side of the trailer. The rear end of the car protruded about I1/2 feet into the trailer. Mrs. Johnson, her married son, Clayton Johnson, and her granddaughter, Anna Marie Johnson, were inside the trailer.

Neither the automobile nor any part of the house trailer struck Mrs. Johnson, but the impact and sudden appearance of the car protruding into the trailer did scare and upset her. Appellant, who also was not hurt, inquired immediately of Mrs. Johnson if she or anybody else was hurt. Appellant testified that Mrs. Johnson assured him that she was not hurt but was merely nervous and scared.

Steve Wilkerson testified that as he was driving east on highway 16 and as he topped a slight incline just west of the intersection, he noticed Aldridge in his lane trying to pass two cars traveling west in front of him. Wilkerson stated that he saw Aldridge try to get back into his proper lane, but that Aldridge lost control of his car. Wilkerson further testified that he would estimate Aldridge’s speed at 70 miles per hour and that, while it had been raining hard before, it was merely showering at the time of the accident.

The Court instructed the jury to find for the plaintiffs and assess their damages. A punitive damages instruction was also granted the plaintiffs as well as an instruction authorizing damages for “all pain and suffering, including both physical pain and mental or emotional pain and anguish, if any”. The plaintiffs continued to live in their damaged trailer for three months and seven days after the accident. They explained that they needed to look after and operate their grocery store next door to their trailer home.

Appellant’s witness, William Hill, who was in the mobile home repair and moving business, examined the trailer two days after the accident, itemized the damages and testified that he could completely repair it in three weeks for $4,389.13. He stated that it would not be necessary to move it to his shop and that the trailer would be in better condition than it was at the time of the accident.

Appellees’ witness, Ray Watkins, who owned and operated Mobile Home Repair Service in Carthage, Mississippi, testified that he examined the trailer about six weeks after the accident. He estimated that the trailer could be repaired for $4,750, but that he might have trouble getting certain repair materials and that he would want the trailer brought to his shop for the repairs. He also was of the opinion that it would not be in as good condition after he had repaired it as it was in at the time of the accident.

About July 1, 1973, appellees bought a new house trailer, larger than the damaged one, and had it located on their farm about a mile and a half from their store. Mr. Johnson testified about various expenses of hooking up utilities on the new trailer. He also testified that a mahogany table worth about $100 and a mahogany mirror worth about $100 were destroyed in the accident.

Mrs. Johnson testified that she suffered from nervousness, sleeplessness and was upset for some time after the accident.

There was no testimony of a sale of the damaged trailer nor of its salvage value.

Dr. Ralph Daniel, Jr., a specialist in internal medicine, who had been Mrs. Johnson’s doctor since February 2, 1967, and had treated her for various and sundry ailments over the years, including tension headaches, high blood pressure, depression, urinary tract infection, enlargement of the thyroid gland and cystic mastitis in the breast, testified that there was no causal connection between her health condition and the accident of March 24, 1973. In fact, after the accident he did not see her until April 9, 1973, when he made an annual type physical examination. On cross-examination Dr. Daniel admitted that the accident might have contributed temporarily to her anxiety.

There were eleven assignments of error, most of which had to do with the granting of a punitive damages instruction for the appellees, a refusal to grant an instruction for the appellant that no punitive damages could be awarded, and the allowance of an instruction that appellees could recover for “all pain and suffering, including both physical pain and mental or emotional pain and anguish, if any”, even though there was no physical impact.

We are of the opinion that a punitive damages instruction should not have been granted the appellees, and as a corollary that an instruction should have been granted the appellant that there could be no award of punitive damages.

In our opinion there was no willful, gross and wanton negligence in the case at bar. In Fowler Butane Gas Company v. Varner, 244 Miss. 130, 141 So.2d 226 (1962), this Court outlined the tests that should be applied in determining whether punitive damages were allowable. In Fowler we said:

“The kind of wrongs to which punitive damages are applicable are those which, besides the violation of a right or the actual damages sustained, import insult, fraud or oppression and not merely injuries but injuries inflicted in the spirit of wanton disregard for the rights of others. In order to warrant the recovery of punitive damages, there must enter into the injury some element of aggression or some coloring of insult, malice or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule. [Citations omitted].” 244 Miss, at 150-51, .141 So.2d at 233.

While this Court did abandon the “physical impact doctrine” in First National Bank v. Langley, 314 So.2d 324, (Miss.1975), we did quote with approval in Langley the following from W. Prosser, Handbook of the Law of Torts § 54 (4th ed. 1971):

“It would seem that there must necessarily be, in lieu of impact, some requirement of satisfactory proof, and at least in the absence of knowledge of the plaintiffs unusual susceptibility, there should be no recovery for hypersensitive mental disturbance where a normal individual would not be affected under the circumstances. But in general, it seems clear that the courts which deny all remedy in such cases are fighting a rearguard action. (Footnotes omitted). Id. at 332-33.” 314 So.2d at 331-32. (Emphasis added).

In the case at bar, Mrs. Johnson’s family doctor testified that there was no causal connection between the accident and her nervous condition. There was no mental disturbance and even the testimony as to nervousness and anxiety was extremely vague, unsatisfactory and speculative.

Since the proof was definite and clear as to the cost of complete repairs to the home trailer and the damage to two items of furniture, these actual damages are clearly separable from any punitive damages and damages for mental pain and suffering as a result of the accident. These proved actual damages amounted to approximately $5,000; the judgment was for $7,000.

We feel that there should be a remittitur of $2,000. If appellees agree to this remit-titur within 15 days after this judgment becomes final, then the judgment will be affirmed for $5,000. Otherwise, the judgment will be reversed and this cause remanded for a new trial on the issue of damages alone.

Affirmed on condition of remittitur.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.


author: GILLESPIE, Chief Justice,

text:
    Marcus SINGLETARY v. STATE of Mississippi.
    No. 48543.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      Moore, Epps & Ginger, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., and Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERT SON, JJ.
   GILLESPIE, Chief Justice,

for the Court:

Marcus Singletary was convicted of burglary and sentenced by the Circuit Court of the First Judicial District of Bolivar County to serve a term of five years in the Mississippi State Penitentiary.

Singletary was indicted and tried for the burglary of a store in the Town of Benoit, in Bolivar County near Cleveland. The burglary was discovered on Sunday morning, October 1, 1972. On October 2, about noon, the Warren County Sheriff’s Department received information from the manager of a Vicksburg motel that three rooms in the motel had been rented under the name of Alonzo Pritchard. Pritchard was one of five persons indicted for the burglary of the Benoit store, the other four being Linda McMillan, Nell McMillan, Julian L. McMillan and Singletary. Pritchard’s conviction was previously affirmed by this Court. Pritchard v. State, 295 So.2d 283 (Miss.1974).

The manager of the motel called Edward H. Reed, Chief Criminal Deputy Sheriff of Warren County, and informed him that a large sum of money was in the room occupied by Julian and Linda McMillan; that there were some people in the room counting money; that there was a gun in the room occupied by Singletary. Upon receipt of this information, Reed called the Jackson office of the Federal Bureau of Investigation and asked them to send some agents to Vicksburg because he thought that the occupants of the three rooms at the motel might be connected with a bank robbery which had occurred in Jackson a few days before.

Reed and another officer placed the motel rooms in question under surveillance at 1:30 p. m. on October 2, and the FBI agents arrived in Vicksburg between three and four o’clock. Deputy Reed learned from the FBI that a recent bank robbery in Mobile and the one in Jackson involved three males and two females. The occupants of the rooms in the motel matched the description of the bank robbers in a general way, and Pritchard and Singletary fitted the description of two of the bank robbers.

While the rooms were under surveillance, Singletary, McMillan and Pritchard arrived at the motel in Singletary’s automobile, which bore a Georgia license tag. Singletary and Julian McMillan went to their rooms and Nell McMillan came from her room and got into the car with Prit-chard. This was the same car that the five persons occupying the rooms were in when they first arrived at the motel to rent the three rooms. Pritchard and Nell McMillan then left in Singletary’s automobile and traveled west on Highway 80 toward the City of Vicksburg. Officer Reed and one of the FBI agents followed in one car and two FBI agents followed in another. After these vehicles had traveled some distance, Officer Reed turned on his blue light and outside speaker and ordered Prit-chard to stop the car, get out and put his hands on top of the car. Pritchard complied, and in doing so, left the door open. As Reed approached he saw a loaded 38-calibre Colt pistol lying on the floor of the automobile. Reed then asked Pritchard if he had been in any previous trouble and Pritchard replied, “I just got out of the big house.” Reed then placed Pritchard under arrest on the gun charge. Nell McMillan refused to get out of the automobile, and one of the FBI agents bodily took her out of the car, and found a fully loaded automatic pistol in the glove compartment.

At this point, Officer Reed advised Prit-chard of his Miranda rights and the search of the glove compartment followed, after which the trunk of the car was also searched. They found a large crowbar, a smaller crowbar, a large sledgehammer, and a small screwdriver.

After the search of the car, Officer Reed and the FBI agents returned to the motel and went into the room occupied by Julian McMillan, who ran to the bathroom. In this room, they seized a suitcase containing a large amount of change. One of the coins had a bullet hole in it, and there were four silver dollars. Two other officers went to the room occupied by Single-tary; they knocked, were invited in, and they observed a weapon on a night stand by the bed. All of the occupants of the three rooms were arrested at that time.

The proof showed that paint, scraped from the crowbars and the sledgehammer, was identical with samples of paint taken from the safe which had been forced open in the burglary of the store at Benoit. The coins were identified as those stolen from the Benoit store. At the time Prit-chard, Singletary and the other co-indict-ees were arrested, the officers did not know of the burgalry of the Benoit store.

The principal assignment of error raises the question: Did the trial judge err in admitting in evidence the two guns, a screwdriver, a prybar or crowbar, and a sledgehammer found in defendant’s automobile when it was searched subsequent to Pritchard’s arrest? Most of the argument on behalf of Singletary is directed to the question whether the officers had probable cause to stop and arrest Singletary.

In our view of the case, the question is whether the officers had sufficient facts to justify their action in stopping the automobile for investigative purposes. The proof clearly shows that this was their purpose and that Singletary was arrested after Deputy Reed had looked through the open door of the automobile and saw the gun partly hidden by the seat.

This Court has held in a number of cases that an arrest begins when the pursuit for the purpose of making an arrest begins. Pollard v. State, 233 So.2d 792 (Miss.1970). The present case does not involve pursuit for the purpose of making an arrest. It does involve the question whether the officers had sufficient information to justify stopping the automobile for investigatory purposes. Police activity in preventing crime, detecting violations, making identifications, and in apprehending criminals may be divided into three types of action: (1) Voluntary conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the officer has probable cause.

The present case involves stop and detention, and references to the other kinds of police intrusion are made only to put the question in perspective.

The beginning of the inquiry is the Fourth Amendment whose standard of reasonableness requires that in every situation the officer must make the intrusion into the person’s privacy as limited as reasonably possible. On the other hand, as aptly stated in United States v. West, 460 F.2d 374 (5th Cir. 1972), “The local policeman is also in a very real sense a guardian of the public peace and he has a duty in the course of his work to be alert for suspicious circumstances, and, provided that he acts within constitutional limits, to investigate whenever such circumstances indicate to him that he should do so.” See also United States v. Allen, 472 F.2d 145 (5th Cir. 1973).

The Supreme Court of the United States in several recent opinions recognized the need for balancing these competing considerations. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court approved the action of the local officer who observed three men as they appeared to be “casing” a store for robbery purposes. The officer approached the men, identified himself, and asked their names. Upon receiving a mumbled reply, the officer frisked them for weapons, found pistols on two of them whom he arrested for carrying concealed weapons. The Court said it was not deciding the question whether the stop was reasonable under the Fourth Amendment. In holding that the officers acted reasonably in making the limited search, the Court said:

Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken. 392 U.S. at 30, 31, 88 S.Ct. at 1884.

In a concurring opinion in Terry, Justice Harlan said that it was implicit in the af-firmance of the case that the officer had a right to stop the suspects:

Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so. 392 U.S. at 33, 88 S.Ct. at 1886.

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court unequivocably settled the question of the lawfulness of an investigative stop where there is no probable cause to arrest if the officer acts reasonably. In Adams, the Court said:

In Terry this Court recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id., [392 U.S.] at 22, 88 S.Ct. [1868], at 1880. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23, 88 S.Ct. [1868], at 1881. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id., at 21-22, 88 S.Ct. [1868], at 1879-1880; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970).
The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” he may conduct a limited protective search for concealed weapons. 392 U.S., at 24, 88 S.Ct. [1868], at 1881. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Id., at 30, 88 S.Ct., [1868] at 1884.

In the present case, the officers knew that two banks had been robbed and that three men and two women were involved. They knew that three men and two women were staying at the Scottish Inn Motel in rooms registered to one man, Pritchard. Two of the men fitted the description of the bank robbers to a “T.” The occupants of the rooms were reported to be counting money and a gun was seen in another room. The officers applied their experience to this state of facts and determined that further investigation was necessary to resolve these ambiguous but highly suspicious circumstances. As stated in Adams, the officers were not required by the Fourth Amendment to shrug their shoulders and do nothing simply because they did not have the precise level of information necessary for probable cause to arrest Pritchard.

This Court has approved investigative stops in at least two recent cases. In Chapman v. State, 284 So.2d 525 (Miss.1973), the suspects were detained (they had been stopped for speeding) until they were identified by the victims of the crime. The Court said:

A crime had been committed. The persons who committed the crime were fleeing from the scene of the crime in an automobile. [White v. State, 70 Miss. 253, 11 So. 632 (1892)]. They were apprehended because of a traffic violation, and when it appeared that they were apparently the persons who were said to have committed the crime, it became the duty of the officer to detain them. Section 2470, Mississippi Code 1942 Annotated (Supp.1972). When they were identified, it became the duty of the sheriff to arrest them. [Bogard v. State, 233 So.2d 102 (Miss.1970); McCollum v. State, 197 So.2d 252 (Miss.1967); Fuqua v. State, 246 Miss. 191, 145 So.2d 152 (1962); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966)]. After they were arrested, it became the duty of the officer to search them for weapons, evidence of the crime for which they were arrested, and means of escape, or other means by which they could injure themselves or others. [Shay v. State, 229 Miss. 186, 90 So.2d 209 (1956)]. Moreover, other evidence obtained by this search was admissible in the trial. [Bradshaw v. State, 192 So.2d 387 (Miss.1966)].

In Dotson v. State, 260 So.2d 839 (Miss.1972), a highway patrolman went to the post office to check his mail at about midnight and saw several mailboxes were open. He observed the defendant as he left the post office walking in a sideways manner and appearing to be hiding something in his hand. The officer asked the defendant to hold up a minute, and the defendant then began to walk away rapidly, whereupon the officer ordered the defendant to halt and hold up whatever he had in his hands. As the defendant held up a large bolt and a screwdriver, the officer noticed what appeared to be the imprint of a pistol in his pocket, with the handle tipping out. At this point, the officer placed defendant under arrest. This Court applied Terry v. Ohio, supra, and upheld the officer’s actions and stated that the original intrusion upon the defendant’s liberty was reasonable under the circumstances.

We hold that the officers acted reasonably in stopping the automobile to determine the identification of the occupants and whether they were involved in the bank robberies. The fact that they were not identified as the bank robbers did not invalidate the stop and the subsequent arrest. Bradshaw v. State, 192 So.2d 387 (Miss.1966).

The other questions raised have been carefully considered and found to be without merit.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.

      . Cf. Bradshaw v. State, 192 So.2d 387 (Miss.1966), where the Court held there was probable cause to arrest.


author: RODGERS, Presiding Justice.

text:
    Bobby RAGAN v. STATE of Mississippi.
    No. 48628.
    Supreme Court of Mississippi.
    Sept. 22, 1975.

      Farese, Farese, Jones & Farese, Ash-land, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before RODGERS, SUGG and BROOM, JJ.
   RODGERS, Presiding Justice.

The appellant Bobby Ragan was indicted, tried, convicted and sentenced by the Circuit Court of Tippah County, Mississippi, to serve a term of seven (7) years in the state penitentiary on a charge of having burglarized a drugstore in Tippah County, Mississippi.

The state offered testimony to show that the town marshal of Walnut, Mississippi, at approximately 12:40 A.M. on September 19, 1972, discovered a drugstore had been broken into. He saw a man running away from the building toward an automobile parked on the other side of the street. He also saw the defendant in the store and saw him run out the back door. This automobile was discovered to be an automobile belonging to the defendant’s father.

Two sets of footprints led away from the back door of the drugstore. The officers obtained bloodhounds and used them to follow the footprints. The dogs led them to the defendant’s father’s home, where the defendant was found hiding in the attic. The father of the defendant used a shotgun to prevent the officers from entering the house until a warrant was obtained.

In rebuttal to the evidence offered by the state, the defendant introduced one James Bartlett, Chief Deputy Sheriff of Hardeman County, Tennessee, who testified that he had known the defendant all of his life and that on the 19th day of September at 12:30 A.M. he saw the defendant at Buster’s Place in Hardeman County, Tennessee, twelve (12) miles from Walnut, Mississippi. At that time this officer was in the company of another officer. He testified that he saw “Bobby Ragan and another fellow and two women sitting there talking.” None of these witnesses were introduced, nor did the defendant testify.

After the state and the defendant had rested their respective testimony, the defendant offered the following instructions:

INSTRUCTION NO. 12
“The Court instructs the jury for the Defendant that the jury must not consider the fact that the Defendant did not testify in this case as evidence against him, but the state must prove him guilty beyond every reasonable doubt, and to a moral certainty; and if the state has not done this, then the jury must find the Defendant not guilty.”
INSTRUCTION NO. 13
“The Court instructs the jury for the Defendant that the law does not compel a Defendant in a criminal case to take the witness stand and testify. That no presumption of guilty may be raised and no inference of any kind may be drawn from Defendant’s failure to testify.
As stated before, the law never imposes upon a Defendant in a criminal case the burden of duty of calling any witnesses or producing any evidence.
The fact that the Defendant did not testify should not arouse even a suspicion that he is guilty, but the State must prove him guilty beyond every reasonable doubt, and to a moral certainty, and if the prosecution has not done this, then the jury must find the Defendant not guilty.”

The trial judge modified Instruction No. 12, so as to strike out the clause “nor does this fact arouse even a suspicion that he is guilty.”

The defendant requested the following two instructions:

INSTRUCTION NO. 11
“Testimony tending to prove identity is to be scrutinized with extreme care.
No class of testimony is more uncertain and less to be relied upon than that as to identity.
The possibility of human error or mistake and the probable likeness or similarity of objects and persons are elements that you must act upon in considering testimony as to identity. You must carefully consider these factors passing upon the credibility that you attach to the witness’s testimony, and you must be satisfied beyond a reasonable doubt as to the accuracy of the witness’s identification of the person or thing.”
INSTRUCTION NO. 18
“The prosecution has the burden of establishing beyond a reasonable doubt the identity of’the Defendant. If from the evidence or lack of evidence there is a reasonable doubt in your mind of the accuracy or sufficiency of the witnesses’ identification of the Defendant, then it is your duty to return a verdict of not guilty.”

The trial judge refused Instruction No. 11 upon the ground that this instruction was a comment upon the weight of the evidence. He also refused Instruction No. 18 upon the ground that the instruction limited the jury to determining the guilt of the defendants to the testimony of the officer’s identification of the defendant.

We are of the opinion that the acts of the trial judge complained of by the defendant as to the instructions were not reversible errors. In the first place, Instruction No. 12, as modified, is sufficient to meet the test required by Funches v. State, 125 Miss. 140, 87 So. 487 (1921), cited by the appellant. The court pointed out in Funches that no instruction was given to the jury advising the jury that the defendant did not have to testify. The Court then said:

“We do not say that the refusal of the court to grant the instruction would in all cases result in a reversal, because it might appear manifestly in some cases that the refusal of the instruction results in no injury to the accused in his trial. But we think the error in refusing the instruction in this case is reversible for the reason that, coupled with the refusal of the instruction to the defendant, counsel for the state in his argument to the jury used the following language, We have never got Neal Funches to talk about this thing; he has always run away from it;’ . . . ” 125 Miss. at 152, 87 So. at 488.

This type of instruction is, of course, based upon the following language of Mississippi Code Annotated Section 13-1-9 (1972):

“The accused shall be a competent witness for himself in any prosecution for crime against him. The failure of the accused, in any case, to testify shall not however operate to his prejudice or be commented on by counsel.”

In the case of Wood v. State, 221 Miss. 901, 74 So.2d 851 (1954), a similar instruction was refused the defendant, and the court said that the refusal of the instruction was error, but harmless in that case, because the defendant was positively identified by Mrs. Hendrix. The defendant was positively identified in the instant case by the town marshal. Moreover, the trial court permitted a good instruction to be given to the jury on the subject in the present case. Compare Rose v. State, 222 Miss. 699, 76 So.2d 835 (1955).

Instruction No. 13 was on the same legal proposition granted in Instruction No. 12. The trial court is not required to grant several instructions on the same question in a different verbiage. McMillan v. State, 198 Miss. 179, 21 So.2d 586 (1945); Barnes v. State, 164 Miss. 126, 143 So. 475 (1932); Taylor v. State, 158 Miss. 505, 130 So. 502 (1930); Smith v. State, 128 Miss. 258, 90 So. 883 (1922). We hold that the trial judge committed no error in refusing Instruction No. 13.

The appellant also complains that the trial court refused to grant requested Instructions No. 11 and 18, as set out above.

Instruction No. 11 was refused by the court upon the ground that it was a “comment upon the weight of the evidence.” We think that the trial judge was correct in so holding, since this instruction violates the terms of Mississippi Code Annotated Section 99-17-35 (1972), wherein it is said: “The judge in any criminal cause, shall not sum up or comment on the testimony, or charge the jury as to the weight of the evidence; . . .”

There is another reason, however, why the refusal to grant a cautionary instruction is not reversible error. This Court is committed to the rule that the refusal to grant a cautionary instruction as to the testimony of an accomplice cannot be assigned as an error, since it may be offered within the discretion of the trial judge. Wellborn v. State, 140 Miss. 640, 105 So. 769 (1925).

Instruction No. 18 is clearly erroneous. It predicates the entire case of guilty or innocence of the defendant upon whether or not there could be a reasonable doubt that the officer actually identified the defendant as the man he saw in the drugstore. Reasonable doubt of the guilt or innocence of an accused in a criminal case is not based on just a part of the testimony, but, rather, upon the entire case including the circumstances surrounding the alleged crime.

It is also contended that the district attorney commented on the fact that the defendant did not testify in violation of accused’s constitutional right to stay silent.

The record shows the following colloquy:

“MR. LITTLEJOHN: * * * why did Bobby run, he had a chance to confront Bud Mills and say, well, I came in here for a bottle of aspirin. I have got a headache tonight.
MR. FARESE: May it please the Court, I object to that, he says why did he run, there was no running, no testimony about running anywhere.
THE COURT: All right, stay within the law and the evidence.”

There is no bill of exceptions to this statement, and no motion for a new trial on the grounds now advanced is shown in the record.

The appellant argues that this is an ill-disguised comment intended and calculated to draw the jury’s attention to the fact that the defendant did not testify and cause the jury to query why Bobby did not answer the district attorney.

The statement of the district attorney is based upon the testimony of the city marshal that he saw the defendant in the drugstore: “Somewhere around halfway of the building, facing the front door.” The officer then said: “He broke and run, run out the back door.”

A district attorney has the right to comment on the evidence and may analyze and deduce inferences from the testimony and may even call witnesses by their names, so long as he does not violate proper decorum of the court or infringe upon the defendant’s right not to testify. Stew art v. State, 170 Miss. S40, 155 So. 347 (1934); Blackwell v. State, 161 Miss. 487, 135 So. 192, 137 So. 189 (1931); Callas v. State, 151 Miss. 617, 118 So. 447 (1928).

We cannot agree with the contention of the defendant that the statement made by the district attorney was in fact a comment intended to call attention to the fact that the defendant did not testify in his own defense. The district attorney had the right to comment on the fact that the man identified as the defendant ran away and did not stop and talk to the officer.

We have found no reversible error in the record of this case, and we are of the opinion that there is ample testimony on which to base a conviction. We, therefore, affirm the judgment of the trial court.

Affirmed.

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


text:
    Leroy GRIFFIN v. Martha Ellen Jackson GRIFFIN.
    No. 48327.
    Supreme Court of Mississippi.
    Sept. 29, 1975.
    Roland C. Lewis, C. A. Henley, Jr., Jackson, for appellant.
    Harry L. Kelley, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before PATTERSON, INZER and WALKER, JJ.

Affirmed.


text:
    Douglas STEVENS, a minor, et al. v. Linda HAAS and Wayne Haas.
    No. 48341.
    Supreme Court of Mississippi.
    Sept. 29, 1975.
    Billy W. Shelton, Jimmy D. Shelton, Leroy Henderson, Jr., Tupelo, for appellants.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy W. Mitchell, III, Tupelo, for appellees.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

Before PATTERSON, INZER and WALKER, JJ.

Affirmed.


author: INZER, Justice.

text:
    RICKS LUMBER COMPANY, INC. v. NATCHEZ STEEL AND PIPE, INC.
    No. 48275.
    Supreme Court of Mississippi.
    Sept. 22, 1975.

      Zuccaro, Riley, Pintard & Brown, Natchez, for appellant.
    Brandon, Handy & O’Beirne, Natchez, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   INZER, Justice.

Ricks Lumber Company, Inc., defendant, appeals from a judgment of the Circuit Court of Adams County reversing a judgment of the County Court of Adams County, and overruling three affirmative defenses pled by the defendant, and awarding judgment in favor of plaintiff, Natchez Steel and Pipe, Inc. for $2,562.06, the amount of back sales tax allegedly due by defendant.

Appellee-plaintiff, Natchez Steel and Pipe, Inc., brought suit in the County Court of Adams County against the defendant, Ricks Lumber Company, Inc., seeking to recover the sum of $2,562.06 alleged to be due for sales tax on sales of merchandise from plaintiff to defendant.

The declaration charged that the sales were made during the calendar years 1969, 1970 and 1971, that the agents of the Mississippi State Tax Commission examined the books of the plaintiff and traced the usage of the materials made by the defendant, and that as a result thereof determined that plaintiff failed to collect the proper tax on the materials and required plaintiff to pay the same. The declaration also charged that plaintiff was required by law to collect the sales tax on the sales in accordance with the tax schedule set out by law, and that the defendant was required by law to pay the same.

The declaration did not have attached to it an itemized list of the sales made during the years in question, but it did have a summary made by the tax commission for the years involved. This summary merely referred to the page number of the audit showing the rate charged and the rate that was properly due on the various items. Also attached as an exhibit was an invoice billing the defendant with the amount of the sales tax alleged to be due. This invoice was not itemized except to show the alleged amount due for the respective years. Attached to the declaration was an affidavit to the effect that all the items set out in the declaration and the exhibits were true and correct as therein set out and that the amounts were justly due by defendant to plaintiff.

The defendant answered the declaration and admitted that it made certain purchases from the plaintiff during the years involved, but denied that the sales tax was not paid by the defendant nor collected by the plaintiff. Defendant admitted the gross sales amounts for 1969 and 1970, but denied the breakdown as shown by the declaration. Defendant denied the gross amount of the sales as shown for the year 1971, but admitted purchases in the total amount of $412.12 on which defendant admitted that it owed sales tax at the rate of five percent, less credit for the amount of sales tax it paid. Defendant admitted that plaintiff was required by law to collect sales tax and it was required by law to pay said tax. Defendant further alleged that it had paid the taxes for the years 1969 and 1970, and was willing to pay the taxes due for 1971. The answer of the defendant did not have an affidavit attached denying the correctness of the account. The defendant also set out in its answer three pleas in bar as affirmative defenses.

The first defense, to which a copy of the waiver and agreement was attached, charged that on September 1, 1970, for value received, plaintiff relinquished and released all rights and claims for the materials furnished and sold and further charged that this waiver released the defendant from any sales tax that was due at that time.

The second defense alleged that on December 21, 1970, defendant signed and delivered to plaintiff, as consideration for the payment of the indebtedness owing for the materials mentioned in the declaration, a promissory note for $20,892, and that the note constituted full payment for the materials furnished for the years 1969 and 1970, including the sales tax thereon. It is charged that plaintiff accepted the note in full payment of any indebtedness which included sales tax, and that the acceptance of the note constituted accord and satisfaction of any and all sales tax due on the date of the note.

As a third defense the defendant alleged that the plaintiff brought suit on the note on April 7, 1971, and the plaintiff and defendant in that suit filed a joint motion to dismiss the suit with prejudice on the payment to the plaintiff of the sum of $21,379.84 as settlement of the suit on the promissory note. It was alleged that the settlement of the suit constituted res judi-cata, and the suit of the plaintiff should be dismissed.

Plaintiff answered the affirmative defense and alleged that as to the first defense of waiver, the waiver amounted to only waiver of a statutory lien plaintiff had for the materials furnished that defendant used in the construction of a building.

As to the second defense of accord and satisfaction, plaintiff alleged that defendant advised plaintiff it was only chargeable with i/s of one percent tax which was charged on the sales made to the defendant. It was alleged that it was not until June 7, 1972, that plaintiff learned that additional sales tax was due, and consequently it could not have accepted on December 21, 1970, a note as payment for sales tax that it did not know was due. Plaintiff specifically denied that it accepted the note as payment of the sales tax.

As to the plea of res judicata, plaintiff in effect alleged that the suit was based on the promissory note and at the time it was executed and at the time the suit was dismissed with prejudice, it did not know that the additional sales tax was due and the collection of the sales tax was not involved in that suit and could not constitute res ju-dicata as to the present suit.

On motion of the defendant, the pleas set up as affirmative defense were heard separately by the court. A stipulation reveals that the only testimony introduced was that of Mrs. Robert Besser, who testified on behalf of the plaintiff. She testified that she was secretary and treasurer of plaintiff corporation and as such was the official custodian of the records. She identified copies of the invoices which constituted the consideration flowing from plaintiff to defendant which prompted the execution of the note by the defendant on December 21, 1970. She testified that sales tax of Y& of one percent (the tax rate for sales to retailers for resale) was charged on these invoices. She said that at the time of the first purchase, the plaintiff was given the State Tax Commission identification number by the defendant with instructions to charge ]/s of one percent on the sales. She also testified that plaintiff first received official notice of the additional sales tax due by the defendant on June 7, 1972, following an audit by the State Tax Commission, and thereafter on June 9, 1972, by letter, plaintiff made demand on defendant for the payment of $2,562.06 found to be due by the State Tax Commission, and on June 16, 1972, by letter, defendant refused to pay the same. It is apparent from this stipulation that defendant offered no testimony in support of its pleas.

The trial court found that the affirmative defense of waiver of lien, accord and satisfaction, and res judicata were all well taken for the reasons cited in the affirmative defenses, and sustained defendant’s motion to dismiss the suit with prejudice. Plaintiff then made a motion to set aside the judgment of dismissal or in the alternative grant a new trial which was overruled.

On appeal to the circuit court that court found that both the statutory and case law were on the side of plaintiff, Natchez Steel and Pipe, Inc., and entered an order reversing the order of the county court, and rendered judgment in favor of Natchez Steel. Hence this appeal.

Appellant contends that the circuit court was in error in reversing the judgment of the county court. It is contended that the pleas set up as affirmative defenses were well taken, but in the alternative, it contends that even if the reversal of the trial court was proper, it was entitled to a trial on its answer.

When defendant requested a separate hearing on the pleas set up in its answer, it had the burden both as to law and the facts. See Section 11-7-59, Mississippi Code 1972 Annotated.

The waiver of lien assigned by plaintiff reads as follows:

FOR VALUE RECEIVED, the undersigned hereby waive, relinquish and release all right and claim to lien for labor and material furnished in connection with the foredescribed improvements and property, and covenant and agree to save and hold harmless the owner and mortgagee of said property against any and all liability, claims and damages resulting from any and all liens for labor and materials furnished in connection with said improvements.

It is apparent that this waiver of lien amounts to nothing more than a waiver of the statutory lien that plaintiff had for the materials which went into the building constructed by the defendant.

As to the plea of accord and satisfaction, the defendant had the burden to show by clear and convincing evidence that the promissory note that it executed was in fact accepted by the plaintiff in full and complete settlement of its indebtedness to plaintiff, including the sales tax. Wade v. Sanders Oil Company, 185 So.2d 442 (Miss.1966). The record reflects that at the request of the defendant, plaintiff charged on invoices sales tax at the rate of Ys of one percent. This would be the proper rate if defendant had resold the materials purchased at retail, but if they were used otherwise, a different rate would apply. At the time the note was accepted by the plaintiff, the presumption was that it was in payment of the debt then due as reflected by the invoices which charged sales tax at the rate of Y% of one percent. At that time, plaintiff did not know that additional sales tax was due. In Wunderlich v. State Highway Commission, 183 Miss. 428, 184 So. 456 (1938), we said:

The authorities seem agreed everywhere that, when a remittance is sent or delivered in full of an annexed or enclosed itemized statement, of account, in full of enclosed or annexed invoices, or in full of any particularly itemized or otherwise particularly designated claim or demand, the accord and satisfaction extends only to the particular or particularized account, statement, invoice or demand so pointed to or designated, and not to any other item, or claim or liability, although growing out of the same matter or transaction. Many cases to this effect are cited, 1 C.J.S. Accord and Satisfaction, pages 533, 534, § 34; and the rule, in substance, is supported in Enochs v. Delta Cotton Oil Co., 139 Miss. 234, 104 So. 92. The effect of an accord and satisfaction cannot be extended by mere inference, as is sought to be done here; wherefore the said plea should have been denied.

(183 Miss, at 442, 184 So. at 457).

The burden of proof was upon the defendant to show that the note was given and accepted by the plaintiff as full payment of all indebtedness existing at that time between the parties. This it failed to do. The fact that the note was endorsed by individuals does not alter the situation.

As to the plea of res judicata, it appears that the note was not paid at maturity and suit was filed upon it. This suit was dismissed with prejudice on joint motion of plaintiff and defendants. The motion recited that defendants had paid the principal and interest on the note and that defendant Ricks agreed to dismiss a suit pending in chancery court. The circuit judge sustained the motion and dismissed the suit on the note with prejudice. At the time this suit was dismissed, plaintiff did not know that additional sales tax was due. There is no evidence that this suit involved anything other than the note. However, the defendant contends that its plea of res judicata was properly sustained by the county court because to allow plaintiff to sue on the claim for taxes would constitute a splitting of the cause of action. We find no merit in this contention for the same reason that the execution of the note did not constitute accord and satisfaction. Plaintiff had no knowledge at the time that the proper sales tax had not been paid and could not have brought suit at that time for any additional sales tax.

For the reasons stated, we are of the opinion that the circuit court was correct in reversing the judgment of the county court, but it was in error in granting judgment for the plaintiff at that stage of the proceeding. Upon reversal of the judgment of the county court, the circuit court should have entered the judgment that the county court should have entered, that is, a judgment that the defendant had failed to sustain its pleas in bar. However, under the provisions of Section 11-7-59, Mississippi Code 1972 Annotated, defendant had the right to go to trial on its answer. The pertinent part of Section 11-7-59 reads as follows:

(1) Pleas in circuit court are hereby abolished and every defense heretofore presentable by plea shall be made in an answer; and the answer may state as many defenses, whether consistent or not and whether heretofore made by plea in abatement or plea in bar, as in law or in fact, the defendant may have to the declaration or to any material part of parts thereof. But if matter which heretofore could constitute a plea be set up in the answer in such a manner as to be clearly distinct and readily separable and go to the entire present cause of action, it may, on motion of either or any of the parties, be separately heard and disposed of before the principal trial on the cause, in the discretion of the court; and the said motion shall by itself, without further formalities or any specifications of grounds, operate (1) to set the said matter of plea for argument upon its sufficiency in law, and if held sufficient in law (2) to put in issue upon its facts, and no replication shall be necessary. And if the defendant fail to sustain the matter of the plea so heard, upon which matter, after motion made, he shall have the burden both as to the law and the facts, he shall nevertheless then have the right to go on trial upon his answer as a whole. (Emphasis added).

In response to defendant’s argument that he is entitled to trial on his answer, plaintiff argues that the judgment of the circuit court should be affirmed for the reason that the answer of the defendant to the suit on an open account was not under oath as required by statute and it was entitled to a judgment. We find no merit in this contention. The case never reached the point where plaintiff was entitled to a directed verdict. It is a rule of evidence and not pleading that the statute providing that a person who sues on open account may make and attach an affidavit of its correctness and that the account is due, and that unless defendant makes affidavit with its plea that the account is not correct, plaintiff shall be entitled to judgment. Its purpose is to dispense with proof of correctness of the account. In any event, unless the account is properly itemized, plaintiff is not relieved of the burden of proving the correctness of the account, and no affidavit denying its correctness is necessary. Pioneer-Hydrotex Industries v. Barfield, 247 Miss. 845, 157 So.2d 489 (1963).

We hold that the circuit court was correct in holding that defendant failed to sustain his pleas in bar and reversing the judgment of the county court. This action disposed of the pleas in bar, but the defendant was entitled to a trial on its answer. For this reason this case is reversed and remanded for trial on the declaration and answer.

Reversed and remanded.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Jack WILSON v. STATE of Mississippi.
    No. 48671.
    Supreme Court of Mississippi.
    Sept. 22, 1975.
    J. W. Kellum, Sumner, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; B. B. Wilkes, Judge.

Before PATTERSON, INZER and WALKER, JJ.

Affirmed.


text:
    Thomas NANCE, Chief of Police of Greenville, Mississippi v. James Earl VICK.
    No. 48276.
    Supreme Court of Mississippi.
    Sept. 15, 1975.
    Guy Kenner Ellis, Jr., Greenville, for appellant.
    Mansour & Kilpatrick, Stephen L. Thomas, Greenville, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   INZER, Justice.

This is an appeal by Thomas Nance, Chief of Police of the City of Greenville, from an order of the Circuit Court of Washington County dismissing his appeal to that court from an order of a habéas corpus court convened in the County Court of Washington County. We affirm.

Appellee after having been convicted on a shoplifting charge in the Greenville City Court and sentenced to pay a fine and serve sixty days in the county jail filed a petition for a writ of habeas corpus which was granted by the judge of the County Court of Washington County. The habeas corpus proceeding was heard, and the court entered an order releasing appellee from custody for the reason that appellee had been denied his constitutional right to counsel in the city court. From this order, an appeal was perfected to the Circuit Court of Washington County. Appellee filed a motion to dismiss the appeal on the ground that the circuit court had no jurisdiction to hear an appeal from a habeas corpus court proceeding heard in the county court. The circuit court held that it had no jurisdiction of the appeal and entered an order dismissing it. Hence, this appeal.

The only question to be decided is whether the circuit court has jurisdiction to hear an appeal from a habeas corpus proceeding heard in the county court. We hold that it does not.

An appeal in a habeas corpus proceeding is specifically provided for by Section 11-43-53, Mississippi Code 1972 Annotated, which reads as follows:

Any party aggrieved by the judgment on the trial of a habeas corpus, shall have an appeal to the supreme court. If any person held in service by this state, or by the United States, should be discharged by any judge in vacation, or any court, on habeas corpus, the attorney general or any district attorney, or any attorney duly authorized by the United States, may in like manner obtain an appeal to reverse the judgment by which such person was discharged.

Appellant urges that the word “may” in the latter part of the above quoted statute means that when the state appeals it may or may not take an appeal to the Supreme Court. It is argued that when this section is read in conjunction with Section 11 — 43— 55, which provides the procedure for an appeal on a judgment of habeas corpus, an appeal from such judgment in the county court can be taken in the same manner as any other appeal from the county court; that is, to the circuit court of that county. We find no merit in this contention.

Appellant overlooks the fact that we held in Fulton v. Fulton, 218 So.2d 866 (Miss.1969), that a habeas corpus court is a separate court and is to be distinguished from the chancery court, circuit court, or county court. It is organized when a judge issues an order for a hearing returnable before himself or another judge.

Furthermore, this Court rejected appellant’s contention in Cole v. Cole, 194 Miss. 292, 12 So.2d 435 (1943), wherein the Court stated:

The question has arisen whether the appeal should have been first to the circuit court. It has always been the policy of the laws of this State to furnish, as speedily as practicable, a remedy in ha-beas corpus. Often, however, hearings upon such applications have been delayed because of the absence of the circuit judge and the chancellor while holding their terms elsewhere in their districts. One of the purposes, therefore, in the establishment of county courts was in the opportunity thereby afforded to further the stated policy of the State, in that there would be provided a judicial officer possessing all the qualifications of a circuit judge or chancellor, and who would be available at all times in each of the larger counties of the State for service in habeas corpus cases.
Thus, it was that by Section 698, Code 1930, there was and is provided that “the county judge shall have power to issue writs, and to try matters, of habeas corpus on application to him therefor, or when made returnable before him by a superior judge.” The effect of this provision is the same as had Section 1917, Code 1930, expressly included the county judge, save perhaps, that he may not make the writ returnable before another judge, as to which we do not now decide, that question not here being before us.
When an application in habeas corpus has been made to a county judge, or has been made returnable before him, he acts not as a county court, but with all the power and authority of a circuit judge or chancellor; wherefore, an appeal maybe taken to this Court under Section 15, Code 1930.
(194 Miss. at 295, 296, 12 So.2d at 426).

It is clear from a reading of the statute and the decisions of this Court that all appeals from a trial of a habeas corpus whether tried in circuit, chancery or county court must be to this Court. Therefore, the circuit court correctly held that it had no jurisdiction to hear an appeal from the habeas corpus court convened in the county court. For this reason, this case must be and is affirmed.

Affirmed.

GILLESPIE, C. J. RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Ruby Joyce TRAMEL v. Jim E. TRAMEL.
    No. 48326.
    Supreme Court of Mississippi.
    Sept. 22, 1975.
    Michael J. Malouf, E. Michael Marks, Jackson, for appellant.
    Abe A. Rotwein, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Betty B. Tucker, Chancellor.

Before PATTERSON, INZER and WALKER, JJ.

Affirmed.


author: ROBERTSON, Justice:

text:
    Hardy HARALSON v. STATE of Mississippi.
    No. 48556.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      Roland C. Lewis, C. A. Henley, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ. '
   ROBERTSON, Justice:

Hardy Haralson was convicted in the Circuit Court of Newton County of the murder of his great nephew, Donald Ray Haralson, and was sentenced to life imprisonment in the Mississippi State Penitentiary-

Defendant assigns as error:

1. Certain alleged prejudicial remarks made by the district attorney in his closing argument.

2. The trial court’s failure to grant a change of venue.

3. The trial court’s admission into evidence of a shotgun, color pictures of the deceased showing the location of the gunshot wounds, a color photograph of the deceased and his small daughter, and certain testimony.

4. An alleged belligerent attitude and dislike of defendant’s counsel by the trial judge, which attitude was allegedly transmitted to the jury and allegedly resulted in a denial of a fair and impartial trial to the defendant.

5. The overruling of appellant’s motion for a new trial.

Around 7:15 A.M., Saturday, October 6, 1973, as was his custom, Donald Ray Har-alsbn, a rural mail carrier, drove his pickup truck to the Conehatta Repair Shop to gas up. This repair shop was owned and operated by defendant and his son, Billy, and faced south on State Highway 489 in Newton County.

L. T. McDill, who operated a country store on the south side of State Highway 489, opposite the Conehatta Repair Shop, testified that he saw defendant arrive at the repair shop around 7:00 A.M. and open up for business. McDill saw Donald Ray Haralson arrive a few minutes later and stop by the gas pumps in front of the shop. He heard a shot and saw Donald Ray run out of the store and fall in front of his pickup truck. Right behind Donald Ray was the defendant with a pistol in his hand. McDill saw him fire at least five rounds at Donald Ray as he lay “on the ground about five feet in front of him, rolling on the ground hollering for help.” Donald Ray staggered across Highway 489 to a sign post on the edge of a roadside ditch. McDill saw the defendant go back in the store and reappear with a shotgun in his hands. He saw the defendant walk down near Highway 489 and fire two rounds at Donald Ray. Donald Ray was on his hands and knees begging for help at the time defendant fired. Donald Ray had nothing in his hands and lay still after the shotgun blasts.

Mrs. Virginia Emmons, a sister of L. T. McDill, had a trailer home located just east of her brother’s store. When she heard the first shot, she came to the living room window of her trailer home and saw Hardy Haralson empty his pistol at Donald Ray, who was down on the ground begging for help. She ran out of her trailer with her 3-year-old son, and pleaded with the defendant not to shoot Donald Ray any more. He ignored her and shot twice at Donald Ray with the shotgun.

Randy, Mrs. Emmons’ 17-year-old son, also saw the shooting and testified similarly to his mother and uncle, L. T. McDill.

Charles Emmons, the husband of Mrs. Virginia Emmons and the father of Randy, was called from the pasture by Randy, and loaded Donald Ray in his truck and took him to the Newton County Hospital.

Elizabeth Meske, a nurse at the Newton County Hospital, testified that she attended Dr. Boggan as he examined Donald Ray Haralson in the emergency room of the Newton County Hospital on the morning of October 6, 1973, and that there were 16 gunshot wounds ranging down the left side from the left arm pit to the left thigh, and then around in the left lower back.

Dr. Boggan testified that the cause of death was “multiple gunshot wounds of the body, particularly of the chest.” Dr. Bog-gan stated that as he remembered it there were 12 gunshot wounds, three on the left thigh, five along the left chest and trunk, two in the left lower back, and at least two in the left arm. Some wounds were made by a small caliber pistol and others appeared to have been made with a different type weapon.

Sheriff W. R. Lindsley and deputy sheriff Dale Weaver both testified that after they had examined the scene of the shooting on the morning of October 6, 1973, they went to Hardy Haralson’s home to arrest him. As Lindsley and Weaver drove up they saw the defendant coming from his dog pen. Before they had a chance to speak, the defendant said:

“[Djamn it, Sheriff, I guess you’ve come after me, I killed the son-of-a-bitch, I wasn’t going to stand by and let him break up my son’s home.”

Sheriff Lindsley said that he told Mr. Hardy not to say anything else until he had advised him of his rights; that he did advise him of his Miranda rights and then placed him under arrest for shooting Donald Haralson.

The sheriff further testified that he asked him where the gun was, and defendant told him that it was in the house; that Billy Haralson, the defendant’s son, went in the old house where the defendant, Billy and his family, had formerly lived and returned with a 12-gauge J. C. Higgins pump gun. After being identified by the sheriff and deputy sheriff, this shotgun was admitted as an exhibit over the objection of the defendant.

The defendant, a 78-year-old man, took the stand in his own defense. He admitted that he shot Donald Ray Haralson a number of times with a pistol and twice with a shotgun, stating at one time that he shot him in self-defense and at another time that he had told him to stay away from the store because he was getting too friendly with his son Billy’s wife, and Donald Ray had not stayed away. Defendant said that Donald Ray was advancing on him in a threatening manner at the time the defendant first shot him. The defendant further testified that he thought Donald Ray was going to his truck for a gun, that he figured there was going to be a shoot-out, and that he would rather have the shotgun than the pistol, and that was the reason he swapped the pistol for the shotgun, and proceeded to shoot Donald Ray twice with the shotgun.

P. D. Welburn, who had worked for International Paper Company blowing beaver dams, testified that Donald Ray Haralson had told him on Tuesday night, October 2nd, that he was going to kill the defendant. Welburn stated that he communicated this threat to the defendant three days later, on Friday night, October 5th.

There is no merit in the first assignment of error. Most of the remarks of the district attorney were not objected to, and the court was not given an opportunity to rule on them. Those that were objected to were based on the evidence in the record and in our opinion were within the proper scope of summation. This Court said in Chinn v. State, 276 So.2d 456 (Miss.1973):

“It has long been the rule that this Court recognizes the right and duty of an attorney to deduce and argue reasonable conclusions based upon the evidence, which are favorable to their clients, and they may do so whether conclusions so urged are weak or strong so long as legitimate, and it is the function of the jury to determine the logic and the weight of the conclusion.”
276 So.2d at 459.

The defendant next contends that the lower court erred in failing to grant a change of venue. The killing took place on October 6, 1973. The trial was finally begun on March 25, 1974, over five months later. The defendant was tried in the county where he had lived all of his life, by a jury of his peers. The trial court had no particular difficulty in qualifying a jury that would agree to properly try the case on the evidence adduced and the instructions given. W. H. Johnson, a former legislator and district attorney and president of the local bar association, testified that defendant could receive a fair trial in Newton County. Sheriff Lindsley of Newton County and Parks Wilson, chief of police of the town of Newton, both testified that in their opinion defendant could receive a fair trial.

In Parks v. State, 267 So.2d 302 (Miss.1972), this Court quoted with approval from Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961):

“The court must look to all the attendant facts and circumstances and should not and will not reverse a trial judge in the exercise of his discretion if a fair proportion of the jurors examined can give the defendant a fair trial. Shelton v. State, 156 Miss. 612, 126 So. 390.” (240 Miss. at 465, 128 So.2d at 344). (267 So.2d at 304).

The trial court did not abuse its discretion in refusing to grant a change of venue.

The defendant contends that the shotgun was wrongfully allowed to be introduced into evidence. There is no merit to this contention. Sheriff Lindsley testified that Billy Haralson, the defendant’s son, volunteered to get the shotgun from the old house where both Billy Haralson and his family and the defendant had formerly lived. Since Billy Haralson had been a joint occupier of the former home and was now using the old home to store furniture in, he had a right to retrieve the shotgun for the sheriff. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The trial court was correct in allowing the shotgun to be introduced into evidence.

Defendant also argues that the trial court erred in admitting as an exhibit a color photograph of the deceased with his little daughter, and also several color pictures of the deceased’s body showing the location of the bullet wounds. All of these pictures had definite evidentiary value, and the trial court did not abuse its discretion in admitting these pictures into evidence.

Defendant contends that he was prejudiced by the introduction of the clothing worn by the deceased at the time of his death because it had a bad odor. This clothing was in substantially the same condition as it was when removed from the deceased’s body immediately after the shooting. It had probative value in showing the location of the bullet holes and the nature of the wounds inflicted. The trial court was correct in admitting these articles of clothing as exhibits. See Ivey v. State, 232 So.2d 368 (Miss.1970), and Rose v. State, 170 Miss. 550, 155 So. 341 (1934).

There is absolutely no merit to the assignment of error that the lower court’s belligerent attitude toward defense counsel prejudiced defendant’s case. The record consists of six volumes containing 1039 pages. Defense counsel asked for and got most of 56 instructions to the jury, even though there was great duplication and repetition. The trial court, in this Court’s opinion, was very patient and fair with the defendant and his counsel during a long and exhaustive trial.

The defendant was tried fairly and impartially, and the jury reached the only verdict it could reach from the evidence adduced.

The trial being without substantial error, the trial court did not err in overruling appellant’s motion for a new trial.

The conviction and sentence of the defendant are, therefore, affirmed.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, J J., concur.


text:
    L. J. DENNY & SONS TRUCKING COMPANY OF FERRIDAY, LOUISIANA v. Emanuel DUNN.
    No. 48318.
    Supreme Court of Mississippi.
    Sept. 22, 1975.
    Watkins & Eager, James L. Carroll, Ve-lia A. Mayer, Jackson, for appellant.
    Walker & Sullivan, Laurel, J. C. Martin, Jr., Waynesboro, for appellee.
   Appeal from Circuit Court, Wayne County; Lester F. Williamson, Judge.

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

Affirmed.


text:
    Antonio RICHARDSON v. STATE of Mississippi.
    No. 48620.
    Supreme Court of Mississippi.
    Sept. 22, 1975.
    Firnist J. Alexander, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Ca-j oleas, Spl. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

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

Affirmed.