author: HARRIS, Judge.

text:
    Bud Dallas HORTON, Jr. v. STATE.
    8 Div. 635.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.

      Crenshaw & Minor, Montgomery, for appellant.
    William J. Baxley, Atty Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the second degree and sentenced to twenty years imprisonment in the penitentiary. At arraignment and trial he was represent-' ed by retained counsel. He pleaded not guilty. After conviction he gave notice of appeal. The court found him to be indigent and he was furnished a free transcript, and trial counsel was appointed to represent him on appeal. Trial counsel did not file a brief and this court appointed counsel to represent appellant.

There is very little conflict in the evidence. On Sunday, November 10, 1974, the deceased was in a car driven by one Donald Edwards. The deceased asked Edwards to pick up his two sons and carry them to their grandmother’s house. On the way they had to pass appellant’s house. The deceased asked Edwards to stop and he would go in appellant’s house and get something to drink.

According to the testimony of Billy Joe Holder, the twelve year old son of the victim, his father got out of the car and went to the door of appellant’s house and knocked and went inside. In a matter of minutes his father came back out and said he couldn’t get anything to drink. The deceased then began to throw rocks at the house. Appellant’s wife came out of the door of the house with a pistol and started shooting at the victim who was standing by Edwards’ car. She fired three shots at the deceased but there was no evidence that she actually shot him.

Billy Joe further testified that then appellant came out of the house and fired two or three shots directly at the deceased. Billy Joe was in the back seat of the automobile with his younger brother when the shooting was going on. When the shooting was over, Billy Joe raised up from the back seat of the car and saw his daddy lying on the ground. Appellant walked to the car and told them to take the man away. Edwards and the two boys picked up the victim and put him in the car and carried him to his mother’s home where he died before the ambulance arrived.

The testimony of Wayne Holder and Donald Edwards were essentially the same as that of Billy Joe Holder.

The state adduced testimony that the deceased suffered a fatal wound from a bullet fired from a .25 caliber automatic pistol and that the slug removed by the Toxicologist from the liver of the deceased matched a test bullet fired from the .25 caliber pistol produced by appellant and which he admitted he fired twice at the deceased.

Leon Green testified that he was an investigator for the Madison County Sheriff’s Office and was dispatched to conduct an investigation of the shooting. He went to appellant’s home with some other officers and he identified himself and the other officers. There were six or seven black males and a black female inside the house. Green advised each person present of his Miranda rights by reading the rights from a card. He asked who was the owner of the house and appellant said he was the owner. Green took appellant and his wife in the kitchen and they sat down at a kitchen table where Green again gave each of them, separately, the rights from the Miranda card.

Appellant and his wife made a statement to Green. Appellant stated that he was in the den playing cards and he heard some shots. He went out on the porch, saw his wife shooting, and he pulled a gun and shot the deceased.

A search of the premises revealed six packs of empty beer cans and a large quantity of wine. A black male was passed out on the couch in the den.

Appellant and his wife were carried to the county court house where they were, separately, given the Miranda rights again. They were asked if they understood their rights and both said they did. They were asked if they would write a statement. They replied they would make a statement but requested the officer to write the statements as they dictated what happened. Separate, signed statements were taken from appellant and his wife.

A voir dire hearing was had out of the presence and hearing of the jury to determine the voluntary character of each statement. At the conclusion of the hearing the court ruled that the confessions were voluntary but that appellant’s confession only would be admitted.

When the jury returned, the state laid the proper predicate and appellant’s confession was read to the jury. This confession is as follows:

“A. ‘Voluntary Statement. Date, 10 November, 1974. Time, 5:41 P.M. Place, Huntsville, Alabama. I, Bud Dallas Horton, Jr., am 35 years of age and my address is Route 2, Box 455, New Market, Alabama. I have been advised and duly warned by Leon Green who has identified himself as an investigator of the Madison County Sheriff’s Department of my right to counsel before making any statement and I do not have to make any statement at all, nor incriminate myself in any manner. I hereby expressly waive my right to the advice of counsel and voluntarily make the following statement to the aforesaid person knowing that any statement I may make may be used against me on the trial or trials for the offense or offenses concerning which the following statement is herein made. I declare that the following statement is made of my own free will without promise of hope or reward coercion, favor or offer of favor, without leniency or offer of leniency by any person or persons whomsoever.
“Around noon today I was in the den at my house playing cards with Lonnie Drake, Ruby Lee Miller and her man Hammonds. I heard the glass break in the den window, it fell all over us. I got up and ran out to the front to see what was happening. I ran out on the porch where my wife was and seen a man named Bill throwing rocks at the house. After I saw the window break in the den and as I was running to the door I heard shots, I heard two shots. After I got outside I told Bill not to do that. When he threw again I shot at him two times. Bill fell down behind the blue Falcon. I told the man that Bill was with to get him out of there and get him to a hospital. The man and two boys got Bill in the car and took off. I didn’t see Willie Mae shooting but Bill fell after I shot at him. Bill has been to my house before two or three times and didn’t cause any trouble. I don’t know if the man was drunk or not. I have read this statement consisting of one page and I affirm to the truth and accuracy of the facts contained therein. This statement was completed at 3:53 P. M. on the 10th day of November, 1974, and signed.” Signature of person giving voluntary statement, Bud Dallas Horton, Jr., and witnessed by Leon Green and Herman Daniels.”

Appellant testified that he was in the den playing cards and he heard glass falling in the house, and some shooting. He ran to the front door and when Mr. Holder raised up from behind the car, he shot him and saw him fall. He further testified that he did not know the deceased was throwing rocks at the house until after the deceased was shot, although his statement given to the police shows otherwise. He stated he did not know his wife had shot at Mr. Holder until the shooting incident was over.

Appellant admitted that he had been drinking before the shooting. The investigating officer corroborated this admission by appellant and that he smelled strongly of the odor of alcohol but he was not drunk.

Lonnie Drake testified for the defense. He said he was in the den playing cards with appellant when the window glass broke and that appellant got up and went to the front of the house and Drake followed him. He stated he heard appellant say to the deceased, “Don’t do that.” Then Drake saw the deceased raise up from behind the car and appellant shot him.

Eddie Whitman, a defense witness, testified that a man came into appellant’s house and appellant’s wife asked, “What you doing, who told you to come in here ? You ain’t never knocked on the door or nothing.” The deceased replied, “- -, the door is open, I’m in here.” She ordered the deceased out of the house and he left.

About five or ten minutes later a Martin girl saw the deceased in the yard of appellant’s home and he told her to go in the house and “tell that - - black nigger to come out here, I want to talk to him.” Appellant’s wife went to the door and he heard glass flying, and then he heard some shots. Whitman further testified that he saw appellant shoot Mr. Holder.

No witness, either for the state or the defense, testified that the deceased was armed.

The sufficiency of the evidence is not before us for review. There was no motion to exclude the state’s evidence on the ground the state failed to make out a prima facie case; there was no motion for a new trial; there was no request for the affirmative charge, and no exceptions were reserved to the oral charge of the court. Moore v. State, SO Ala.App. 616, 282 So.2d 56; Twitty v. State, 50 Ala.App. 246, 278 So.2d 247; Wilcox v. State, 54 Ala.App. 474, 309 So.2d 510.

Counsel is allowed wide latitude in commenting on the evidence and in arguing reasonable inferences which may be drawn from the evidence. Davis v. State, 49 Ala.App. 587, 274 So.2d 360; Carroll v. State, 36 Ala.App. 59, 52 So.2d 171; Cross v. State, 68 Ala. 476.

Appellant, in brief, complains that the closing argument of the District Attorney was highly improper and prejudicial to the rights of appellant. We have carefully read this entire record and the language of the District Attorney of which complaint is made simply does not appear in the record. This is conceded by appellant. We are, thus, left in the dark as to whether the District Attorney transcended the boundaries of legitimate argument.

In Brown v. State, 50 Ala.App. 471, 280 So.2d 177, this court said:

“It is generally held that improper argument of counsel is not subject to review unless there is due objection or a motion to exclude, and a ruling thereon by the court, or a refusal of the court to make a ruling. Nichols v. State, 267 Ala. 217, 100 So.2d 750; White v. State, 40 Ala. App. 378, 114 So.2d 325. An exception to this rule exists in the case of ineradicable harm, and if this occurs, it should be brought to the trial court’s attention by a motion for a new trial. Alday v. State, 42 Ala.App. 21, 151 So.2d 220.”

As we have pointed out there was no motion for a new trial.

We find no error in the record, and the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Eugene STARKS v. STATE.
    3 Div. 397.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1976.
    Raymon, Russell & Nathanson, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Possession of heroin; guilty plea; sentence : ten years imprisonment.

The record in this case showed that the appellant entered a plea of guilty to the charge of possession of heroin and requested probation, by executing a form referred to as Exhibit A, commonly known in this state as an Ireland form. (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602).

Such form, among other things, informed the appellant: (1) that he was charged with the crime of possession of heroin, a felony; (2) the range of punishment; (3) that he had a right not to be compelled to give evidence against himself; (4) that he had a right to trial by jury; (5) that he had a right to testify in his own behalf, but was not required to do so; (6) that he and his attorney could subpoena witnesses, confront and cross examine witnesses for the State, and examine his own witnesses; (7) that he had a right to be confronted by and cross examine his accusers; (8) that he was clothed with a presumption of innocence which would follow him throughout the trial until the State presented evidence that would convince each juror of guilty beyond a reasonable doubt; (9) that the burden of proof would be upon the State; (10) that he had a right to enter a plea of not guilty, not guilty by reason of insanity or any other special plea, and; (11) that he should enter a guilty plea only if he was actually guilty of the crime and did not desire a jury trial, in which case there would be no jury trial as therein explained.

The form was signed by both the appellant and his attorney on November 20, 1974. The form further requested probation and explained the appellant’s rights in seeking probation. The form further stated that the appellant had read, or had read to him, the matters contained therein, that he understood them and that he was not under the influence of drugs, medicines or alcohol and had not been threatened, abused or offered any inducement, promise or reward to get him to plead guilty. The appellant then signed that statement on the same date and further, the appellant’s attorney likewise signed a statement that all of the appellant’s rights had been read by the appellant in his presence or were read and explained by the attorney to the appellant, and that a copy was given to the appellant to keep and study. That form was likewise signed by the circuit judge and the circuit clerk on November 20, 1974.

The judgment entry in the record recites that before accepting the appellant’s plea of guilty, the court ascertained that the plea was intelligently and voluntarily made and that the appellant understood, “(1) the privilege against self incrimination, (2) the right to a trial by jury, (3) the right to be confronted by his accusers, (4) that he fully understood what the plea connoted, including the nature of the charge and acts sufficient to constitute the offense, and (5) the consequences of the plea, including the range of the sentence, and being satisfied that the foregoing was fully and intelligently understood by the defendant and that his plea of guilty was freely and voluntarily made, the Court proceeded with the hearing.”

In addition to the Ireland form and the recitation in the minute entry, the trial judge entered into a short colloquy with the appellant on the date of sentencing, which in pertinent part is as follows:

“THE COURT: — and he committed a robbery, or allegedly committed a robbery offense when this case was pending.
“Now, Mr. Starks, I show you Exhibit A. Have you read Exhibit A, or have you had Exhibit A read to you by your attorney and have signed this document?
“THE DEFENDANT: Yes, sir.
“THE COURT: You know that you have a right to a trial by Jury, don’t you? „
“THE DEFENDANT: Yes.
“THE COURT: You know you have the right to subpoena witnesses in your behalf and to have those witnesses examined and cross examined by your attorney. And do you also understand that the Court is not bound by any agreement of any kind with the District Attorney’s offices if you plead guilty and request probation?
“THE DEFENDANT: Yes, sir.
“THE COURT: Mr. Smith, have you gone over fully with the defendant Exhibit A in his presence and have read to him or had it explained to him so that he understands it?
“MR. SMITH: Yes, sir.
“THE COURT: All right. Do you have anything to say why the sentence of law should not now be imposed upon you?
“THE DEFENDANT: No, sir.
“THE COURT: You are sentenced to ten years imprisonment in the penitentiary and denied probation.”

The appellant contends that the above colloquy is insufficient to affirmatively show that he had a full understanding of a guilty plea and its consequences. It is the contention of the appellant that a guilty plea should not rest alone upon the execution of a written form. With this we agree, however, the record in the instant case does not bear out the appellant’s contention in this regard.

The instant case is almost identical with the circumstances in Twyman v. State, 53 Ala.App. 351, 300 So.2d 121 (1973), reversed, 293 Ala. 75, 300 So.2d 124 (1974).

In the first instance, this Court reversed the conviction of Twyman on a guilty plea for failure of the record to affirmatively show a colloquy between the court and Twyman. In a dissenting opinion by Cates, Presiding Judge, it was pointed out that in addition to an Ireland form, the minute entry incorporated the form and recited that Twyman stated to the court that he had read the form or that his counsel had read it to him, that his counsel had fully explained the contents to him, that he fully understood the same.

That dissent ended by stating:'

“A verbatim report is probably more desirable than an attenuated one appended to written advice and acknowledgements. This particularly because of the frequency of post mortem proceedings in Federal courts. However, I do not consider that there be a specific face-to-face in-of memorializing a proper guilty plea.
“On this principle, I would distinguish the instant record from that shown in Cooper v. State, 53 Ala.App. 36, 297 So.2d 169, this day decided. I do not think Cooper controls this case. In other words, all that should be necessary is that there be a specific face-to-face in-court conversation between the trial judge and the accused and the colloquy must specifically go into the accused’s understanding. However, it is not material as to who is the amanuensis of the conversation, whether court reporter, court clerk, or other impartial witness thereto.” (Footnotes omitted)

A majority of the Alabama Supreme Court agreed, and reversed this Court. The Court there acknowledged prior cases holding that a judgment entry imports absolute verity, unless contradicted by other portions of the record.' They found nothing in the record in Twyman to contradict the judgment entry. The same is true in the instant case.

In Twyman, the Supreme Court found that:

“The trial judge, the defendant, and defendant’s attorney all attest over their respective signatures that the matters and things stated in ‘Court’s Exhibit A’ were read by defendant of read to defendant. Defendant acknowledges that this was done and that he understands those matters and things.
“ . . . There is no rule of law that requires or even suggests that it must be presumed that the trial judge, the defendant, defendant’s attorney, or the judgment entry do not speak the truth. The judgment is not contradicted by the instant record. . . . ”

In the instant case, we find not only an Ireland form executed by Starks and his attorney, and acknowledged by the signatures of the trial judge and circuit clerk, we also find a minute entry which shows that the trial court personally ascertained from the defendant that he understood the matters contained in the form and that his attorney had explained them to him. Such would be sufficient for af-firmance pursuant to Twyman, supra. But additionally, we find here a colloquy between the trial judge and the appellant wherein the trial judge ascertained that the appellant was familiar with the contents of the Ireland form and that he knew full well the consequences of a guilty plea, and was knowingly and voluntarily entering such a plea.

Affirmed.

All the Judges concur.


author: HARRIS, Judge. CATES, Presiding Judge

text:
    John WASHINGTON v. STATE.
    2 Div. 153.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Thomas H. Boggs, Jr., Demopolis, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Washington was convicted of murder in the first degree and sentenced to life imprisonment. He was represented at arraignment and trial by court appointed counsel. He pleaded not guilty and not guilty by reason of insanity. After sentence he gave notice of appeal and was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Some time around midnight, or shortly thereafter, on February 24, 1974, appellant went on a shooting spree and killed three people and shot and wounded three other people. He then drove to the VA Hospital in Tuscaloosa, Alabama, where he gave someone a rifle and stated he had shot six people.

The Sheriff of Greene County, Thomas A. Gilmore, testified that he was notified by telephone from the Boligee Police about the shootings and he and his Deputy went to the scene of the shootings where three people were killed at the home of Joe James and Mary Virginia James. There he saw three dead people including Charlie James for whose death appellant was prosecuted in this case. He stated he found Charlie James inside the north bedroom and felt his pulse and thought he was dead. He said he observed a small hole in the neck of the deceased and in his opinion it was a gunshot wound. The Sheriff had two photographs made of the body of the deceased and the room in which the body was found. These photographs were offered in evidence. Counsel for appellant did not object to one of the photographs but objected to the second photograph on the ground that it was a close-up picture showing blood on the floor near the bed where the deceased was lying on the ground and that it would unduly inflame the jury. Over this objection the photograph was admitted in evidence.

The Sheriff further testified that he interviewed Mary Virginia James who told him she saw appellant shoot the deceased who was her son, and that he shot him in the neck with a rifle.

After completing the investigation of the six shootings the Sheriff received information from the Veterans Hospital in Tuscaloosa that appellant was being held there and that someone should come and pick him up. The Sheriff and his Chief Deputy went to Tuscaloosa on the late afternoon of the same day of the shootings. Before leaving for Tuscaloosa the Sheriff obtained a warrant of arrest for appellant charging him with murder. When they arrived at the Veterans Hospital in Tuscaloosa, appellant was surrendered to the custody of the Sheriff along with a .22 rifle, shells and a large sum of money.

According to the Sheriff appellant rode in the car with him. He said he knew appellant and appellant knew him; that he told appellant that he was charged with murder and gave him the Miranda rights and warnings ¿nd that appellant said he understood his rights. After his rights were explained to him, appellant told the Sheriff he had shot six people and gave the Sheriff the names of the six people.

The Sheriff never did ask appellant if the rifle he had in his possession was the gun he used to kill three people and shoot three others. It would have been a very simple thing to have had appellant identify the murder weapon but this was never done. The rifle was offered in evidence over the objections of appellant’s counsel that it had not been identified as the murder weapon but the trial court admitted the rifle in evidence just as a weapon. Appellant subsequently moved to exclude the rifle but the motion was overruled.

The only evidence even tending to show the rifle was used by appellant at the time of the shootings was the statement by the Sheriff that someone in authority at the Veterans Hospital told the Sheriff that appellant brought a rifle with him and said he had shot six people. The testimony of the Sheriff was hearsay evidence, pure and simple. We believe the trial court fell into error in permitting the rifle to be admitted in evidence and the case should be reversed and remanded for a new trial. Amerson v. State, 43 Ala.App. 148, 182 So.2d 901.

The person in authority at the Veterans Hospital in Tuscaloosa to whom appellant allegedly gave the rifle should have been called by the state to identify the rifle, since it was not otherwise identified.

Appellant called three psychologists to testify in support of his insanity plea. The testimony of these three doctors is more confusing than enlightening. It will serve no useful purpose to detail the testimony of these psychologists. Suffice it to say that their testimony failed to meet the test of insanity laid down in the celebrated case of Parsons v. State, 81 Ala. 577, 2 So. 854.

Appellant’s counsel contends that numerous other errors were committed in the trial of this case but in the light of our holding we will not respond to these contentions.

For the error above noted this case is reversed and remanded for a new trial.

Reversed and remanded.

All the j udges concur.

CATES, P. J., concurs with opinion.

CATES, Presiding Judge

(concurring) :

In view of the need for a new trial I consider the trial judge should again follow Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, to make sure that appellant is then competent to stand trial. See Pierce v. State, 52 Ala.App. 422, 293 So.2d 483.


author: RODGERS, Presiding Justice.

text:
    Davey Jon DAVIS v. STATE of Mississippi.
    No. 48846.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Stanford Young, Waynesboro, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, INZER and SMITH, JJ.
   RODGERS, Presiding Justice.

Davey Jon Davis was indicted, tried and convicted in the Circuit Court of Wayne County, Mississippi, for the crime of producing marijuana. He was sentenced to serve a term of four (4) years in the state penitentiary.

It is from this verdict and sentence that the appellant appeals to this Court alleging:

(1) The court erred in sentencing Dav-ey Jon Davis, an eighteen-year-old boy, to Parchman for producing a controlled substance.

(2) The court erred in admitting the alleged confession of Davey Jon Davis.

(3) The search and seizure of the marijuana plants was not legal because they were not obtained on the premises.

The sheriff of Wayne County, Marvin Farrior, received information that the appellant was growing marijuana, and upon the reception of this information, on June 1, 1974, he drove by the appellant’s home to see if there were any basis for the information or whether it was speculation. From the public road that ran by the appellant’s house, Sheriff Farrior was able to observe certain plants growing in the yard which he recognized to be marijuana. He proceeded to the justice of the peace and secured a search warrant based upon his personal observation of the marijuana plants in the yard. The sheriff returned to the appellant’s home, and the appellant’s car was missing. Sheriff Farrior did not remain at the house; he notified one of his deputies to find Davey Jon Davis and bring him home.

The sheriff then decided to return to the house and conduct his search even though the appellant was not there. As he arrived this time, a pickup truck driven by a blond-headed boy was pulling off. The sheriff rushed to the spots where he had observed the marijuana plants and discovered they were no longer there. As the sheriff and his deputy were about to begin a search for the pickup and its driver, which the sheriff had observed leaving, the truck returned. Stopping the pickup, the officers discovered that the driver was Ronald Busby, a brother of Davey Jon Davis’ wife. When asked about the marijuana plants growing in the yard, he admitted pulling them up and transporting them away from Davis’ home, according to the instructions he had received from Dav-ey Jon Davis which had been relayed by a telephone call from Davey Jon’s wife. He took the sheriff’s deputy to the spot where he had thrown the marijuana after leaving Davey Jon’s home.

The appellant waived his rights and confessed to the crime of growing marijuana. In his confession, and evidenced by the testimony of Ronald Busby, the appellant admitted that he did instruct his wife to call her brother to pick up the “marijuana plants and do away with them because the sheriff was coming out there.” This call was made after a deputy sheriff had informed the appellant that the sheriff wanted to see him at his home.

During his trial the appellant took the stand in his own behalf and admitted that he was the one who planted the marijuana. Curiosity as to what marijuana looked like caused him to plant it.

We have read the record and the cases cited by the attorneys in their briefs, and we have reached the conclusion that there is no merit in any of the appellant’s arguments except, the one regarding the trial court’s sentencing a first offender, an eighteen-year-old boy, to Parchman for producing a controlled substance.

This Court is cognizant of our ruling handed down in Worthy v. State, 308 So.2d 921 (Miss.1975), wherein we held that juvenile first offenders on drug charges who are sentenced to confinement are to be mandatorily sentenced to confinement in either Mississippi State Hospital at Whitfield, or East Mississippi State Hospital at Meridian, for the term of their sentences.

We would like to add to our ruling in Worthy v. State to show that Worthy does not preclude the trial judge when sentencing a juvenile first offender on a drug charge from utilizing other legislative provisions which would promote his rehabilitation. See Mississippi Code Annotated § 41-29-149 and § 41-29-150 (Supp.1975).

We are of the opinion that the testimony of the witnesses, coupled with that of the appellant, is sufficient to establish the charge of producing marijuana. 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. However, in keeping with our holding in Worthy v. State, supra, this case must be remanded for sentencing in compliance therewith.

Affirmed; remanded for resentencing.

GILLESPIE, C. J., and PATTERSON, ROBERTSON, SUGG, WALKER, and BROOM, JJ., concur.


text:
    Thomas G. PLUM et ux. v. COMMERCIAL CREDIT CORP.
    No. 48422.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    Rehearing Denied Jan. 13, 1976.
    Vlahos & Caranna, Biloxi, for appellant.
    Rushing & Guice, William Lee Guice, III, Biloxi, for appellee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Before PATTERSON, INZER and WALKER, JJ.

Affirmed.


author: PATTERSON, Justice:

text:
    Wilfred Dewitt VICKERS v. STATE of Mississippi.
    No. 48715.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    Rehearing Denied Jan. 13, 1976.
    Kenneth W. Martin, Pascagoula, for appellant.

      A. F. Summer, Atty. Gen., by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, INZER and WALKER, JJ.
   PATTERSON, Justice:

Dewitt Vickers was indicted and tried in the Circuit Court of Jackson County for armed robbery. He was found guilty by a verdict of the jury and sentenced to twenty years in the state penitentiary. From this conviction and sentence he appeals and contends for reversal that he was prejudiced by comments of the trial judge, he was not identified as a participant in the crime and the verdict was contrary to the overwhelming weight of the evidence. We affirm.

On April 19, 1974, Eckerd’s Drug Store in Pascagoula was robbed at gunpoint by three men. Although the thieves wore stocking masks, two of them were in-dentified by two of Eckerd’s employees who were working at the front counter near the entrance of the store when it was robbed. Vickers, the appellant, was identified only by one employee of Eckerd’s, the pharmacist who was positioned in the rear of the store, but who came in close proximity to Vickers inasmuch as he handed the “loot” to him. The pharmacist’s identification was to an extent contradicted by his prior statements to the police, but it was corroborated by the testimony of a co-defendant who gave evidence that Vickers participated in the robbery. However, there was a previous written statement of the co-defendant in which he had denied Vickers was a participant in the crime. The testimony of the codefendant is suspect since he admitted on the stand that he was a liar. The testimony of the pharmacist as to identification was positive, reasonable and the contradictions in it were plausibly explained. It was sufficient to identify the appellant.

The conflicts in the evidence, its strengths or weaknesses were all brought before the jury by the attorneys’ examination and from it the jury found the appellant guilty. The jury is the sole judge of the weight and worth of the testimony and it has the duty to determine the evidence it will accept as true and that which it should reject as untrue. Wilson v. State, 234 So.2d 303 (Miss.1970); Alexander v. State, 251 Miss. 847, 171 So.2d 517 (1965). We are of the opinion there was sufficient evidence introduced by the state for the case to be submitted to the jury and its verdict was not contrary to the overwhelming weight of the evidence.

The appellant next contends that he was prejudiced by the comments of the trial judge before the jury, stemming from a colloquy between the judge and the defense attorney. The comments of the judge were directed to a bond of a code-fendant which had been reduced from its original sum to a lesser amount. From this the appellant argues that credence was lent to the testimony of the codefendant. Undoubtedly, jurors give much weight to the words of a trial judge and obviously, we think, his comments, demeanor or expressions could affect a jury. However, an overall review of the many comments of the trial judge does not reflect any remark likely to prejudice the jury against the defendant. Moreover, no objection was made at the time of the remarks and the judge was not requested to retract or alter the statements nor did the appellant move for a mistrial. Sullivan v. State, 213 Miss. 14, 56 So.2d 93 (1952). We are not persuaded from the circumstances before us that the comments of the judge were of prejudice to the appellant. We therefore reject this assignment of error.

Finally, complaint is made that the trial court erred in not granting a new trial when the record reflects that the co-defendant’s statements were kept from the defendant in violation of a pretrial discovery order. A portion of the court’s pretrial discovery order directed disclosure of “ . . .a copy of any statements made by the defendant, codefendants, alleged accomplices and not heretofore reduced to writing, together with the names and addresses of any parties who were present at the time the statements were made.” The point urged by the appellant is that the state wrongfully circumvented the order by not notifying the defendant of its intended use of the accomplice as a witness until the morning of the trial and hence the defendant was not sufficiently forewarned of the impending testimony.

The record reveals that an investigator for the district attorney’s office advised him that the accomplice would testify for the state. The district attorney incredibly placed this witness on the stand without conferring with him, thus affording a basis for the argument that the court’s pretrial discovery order was artfully evaded. In Peterson v. State, 242 So.2d 420 (Miss.1970), we held:

. there is no rule requiring the State to divulge its entire case to the defendant. The discovery rule is directed toward physical evidence in the possession of the prosecution. The motion to divulge evidence is addressed to the sound discretion of the trial court to insure a fair trial and it is ordinarily granted within reasonable limits so as to preserve and safeguard the evidence. See cases collected in Armstrong v. State, 214 So.2d 589 (Miss.1968). 242 So.2d at 424.

The trial court’s discovery order and the facts related to it reveal no circumstance from which we can state the district attorney violated the order, particularly since it included a direction by the trial court that the state, its witnesses, including the officers of the sheriff’s department, were enjoined from admonishing any witnesses not to talk with the defendant’s attorney or his investigator. The witnesses were thus equally available to the defendant as they were to the state and the defendant must have known through his attorney the likelihood of one accomplice giving testimony against the other. We think this appellant was not prejudiced by the failure of the district attorney to more timely notify him of his intended use of an accomplice as a witness.

Overall, the identification of the appellant as a participant in the robbery is not overly strong and has given this Court much concern. However, the jury was properly instructed as to an accomplice’s testimony and there was the identification by the pharmacist who had an opportunity to observe the appellant and thereby identify him even though he wore a stocking mask. The strength of his testimony, or its weakness, was for the jury’s resolution. We cannot state the verdict is unsupported by credible evidence. It will therefore be affirmed.

Affirmed.

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


author: INZER, Justice.

text:
    Bobby R. FERGUSON v. STATE of Mississippi.
    No. 48804.
    Supreme Court of Mississippi.
    Dec. 15, 1975.
    Rehearing Denied Jan. 13, 1976.

      Bennie L. Turner, West Point, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Caj oleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, WALKER and BROOM, JJ.
   INZER, Justice.

Appellant, Bobby R. Ferguson, was indicted, tried and convicted in the Circuit Court of Oktibbeha County, Mississippi, for the crime of burglary of a building other than a dwelling house. He was sentenced to serve a term of six years in the State Penitentiary. From this conviction and sentence, he appeals. We affirm.

On January 7, 1975, Sportsman’s Package Store in Starkville, Mississippi, was burglarized. While patroling Highway 82, on which the package store was located, Officer John Banks of the Starkville Police Department was' informed by Mr. Isom Patton that the liquor store was being robbed by two men, one of whom was wearing a red cap. Patton also stated that he heard someone running in the bushes. Upon arriving at the store, Officer Banks found that the door was pried open, that money was strewn all over the floor, and that rolls .of pennies were scattered outside the building leaving a trail to a wooded area. Mrs. Hewlett, owner of the store, subsequently informed Officer Banks a key to the back door, money from the cash drawer, a loaded shotgun and certain other coins were missing. Officer Banks then searched the area back of the store for approximately fifteen minutes until Officer Cooper arrived at the scene. The two officers then drove along Highway 82 to Lee Street to appellant’s house, approximately 400 yards from the store, in order to gain access into the woods to search for the felons. While walking through appellant’s unenclosed back yard toward the woods, the officers saw a coin bag and a red cap matching the description of the one that Patton had seen one of the felons wearing. Upon investigation the bag was found to contain some nickels and the key. The officers also found a pistol, a crow bar, and some pennies on the back steps of appellant’s house. After seizing this evidence, the two officers then went to the front of appellant’s house and knocked and were admitted by appellant. While Officer Cooper was talking to Ferguson, Officer Banks heard a noise near the chimney, which caused him to turn and notice some coins in the fireplace. He then showed Officer Cooper the coins and reached into the chimney where he found another coin bag. The appellant was then advised of his rights and arrested.

Appellant’s only assignment of error is that the trial judge erred in overruling his motion to suppress the evidence found in his backyard and in his house. Citing Davidson v. State, 240 So.2d 463 (Miss.1970), the appellant contends that the officers were trespassing when they crossed his yard, and as such the search of the yard and subsequent search of the house were illegal. However, in Nobles v. State, 241 So.2d 826 (Miss.1970), in response to an appellant’s allegation that evidence was obtained through an illegal search of an automobile, we stated:

The officer knew that a felony had been committed, he was in hot pursuit of the felons who had fled the scene of the crime. He was authorized to go in houses and even break doors in an effort to capture the felons. [Citations omitted] He found various items of evidence as he followed the trail of these escapees. He found a pistol at the window of the burglarized building, and along the way he found silver coins, human tracks, and an abandoned automobile. The “exigencies of the situation” were such that the officers were confronted not only with armed escapees, but were also confronted with the duty to prevent the escape by automobile or otherwise, thus, authorizing the officer to seize the automobile where he had probable cause to believe the automobile was the “get away car” or means of escape. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). (Emphasis added) (241 So.2d at 828).

In Hayden, supra, cited in Nobles, the Supreme Court held that a warrantless search and subsequent seizure of evidence contained in a washing machine in a house were not invalid because the “exigencies of the situation made that course imperative,” because the officers had knowledge that a robbery had taken place and that the robber had entered the house shortly thereafter. The officers were merely following a fresh trail left by armed felons.

In the instant case the police were also in hot pursuit of the felons. They had heard dogs barking in the woods, and had been informed that someone had been seen running in the bushes. They had entered defendant’s yard, not to search, but only to gain access to the woods. The cap and coins were clearly visible to anyone who might have been in the yard. The officers had been informed that a loaded pistol was missing from the store and once they found the cap and the coins, the officers had clear authority to knock and enter the house. All the events complained of by the appellant occurred within 45 minutes after the burglary had been committed, and while the officers were fresh on the trail of fleeing felons. Consequently, on the facts stated above, the search was not unreasonable and we cannot say the trial judge erred in overruling the motion to suppress the evidence thus obtained. Accordingly, for the reasons stated, this case must be and is affirmed.

Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and PATTERSON, SMITH, ROBERTSON and SUGG, JJ., concur.


text:
    Sardon LIVINGS et al. v. James BIGGS et al.
    No. 48404.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    Singley & Morgan, Columbia, for appellants.
   Appeal from Chancery Court, Pearl River County; Howard L. Patterson, Jr., Chancellor.

Larry O. Norris, Davis T. Fortenberry, Hattiesburg, for appellees.

Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SUGG and WALKER, JJ., concurring.

BROOM, J., not participating.


author: GILLESPIE, Chief Justice:

text:
    Troy DANIELS v. BOARD OF SUPERVISORS OF CLARKE COUNTY, Mississippi.
    No. 48440.
    Supreme Court of Mississippi.
    Dec. 22, 1975.

      Louie M. Bishop, Waynesboro, for appellant.
    A. J. Reese, Quitman, for appellee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   GILLESPIE, Chief Justice:

In this eminent domain case filed by the Board of Supervisors and tried in the Circuit Court of Clarke County, the jury awarded Troy Daniels, the landowner, $750. Landowner appealed.

The property condemned for highway purposes is a strip about 8 feet by 105 feet off of a lot measuring 210 feet by 105 feet, fronting 105 feet on a public road just outside the Town .of Shubuta, Mississippi. Situated on the lot is a store building constructed of concrete block which fronts on the street a width of thirty-two feet. An eight-foot shed across the front of the building is being taken, leaving the front building wall within inches of the right-of-way. The building was formerly used for a store and service station, but has been used for farm storage for several years. Access to the building for storage purposes can be had at the rear only after the taking.

The proof of damages offered by the petitioner consisted of the testimony of appraiser Robert H. Donald, Jr., who valued the land actually taken at $157.50, and the replacement cost of the shed in front of the building over the land actually taken at $384, minus $126 for depreciation, or total damages of $415.50. He was of the opinion that the remainder of the property would not be damaged. He valued the lot before the taking at $3,046, including the building. He arrived at the damages by deducting the replacement cost of the shed and the value of the land taken from the total value of the lot and improvements. Landowner offered an appraiser’s testimony based on the before and after rule, that the land and improvements were worth $11,360 before the taking and $3,500 after the taking, with a resulting damage of $7,860. The jury returned an award of $750.

The landowner contends that the petitioner’s proof was insufficient to meet its burden of proving damages. We agree.

The petitioner’s only appraiser made his appraisal not on the difference between the fair market value of the whole property before the taking and the fair market value of the property remaining after the taking. In determining the value of the property before the taking, he limited the value of the building to its present use of storing farm products. The property must not be valued “[SJimply with reference to the condition in which the owner has maintained it or for the use to which it is at the time applied, but with reference to any use to which it is reasonably adapted.” Miss Highway Commission v. Wagley, 231 So.2d 507 (Miss.1970). Petitioner attempted to follow the before and after rule by first appraising the whole property before the taking, then arriving at the damages, and deducting the damages from the before-value to arrive at the after-taking value. This is not a proper method of appraisal under the before and after rule. Moreover, in arriving at damages to the building, the appraiser used the replacement cost of the shed, which does not necessarily reflect the damages to the building. In addition, the removal of the shed across the front of the building and extending the right-of-way within inches of the front of the building damaged the remaining property as a matter of law. This is not a proper case for the exception to the before and after rule. Sanderson Farms, Inc. v. State Highway Commission, 324 So.2d 243 (Miss., decided October 27, 1975).

For the reasons stated, the Court holds that the petitioner failed to meet the burden of proving due compensation for the land taken and damages resulting to the remaining land.

We are of the opinion that this is a proper case for the suggestion of an addi-tur in an effort to avoid a retrial. Therefore, if petitioner consents to an additur of $1,250 within fifteen days after this judgment becomes final, judgment in favor of the landowner will be entered here for $2,000; otherwise the case will be reversed and remanded for a new trial.

Affirmed on condition of additur.

RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON and SUGG, JJ., concur.


text:
    PENTHOUSE INTERNATIONAL, LTD. and Magazine Management Co., Inc. v. STATE of Mississippi ex rel. Rex JONES, D.A. PLAYBOY ENTERPRISES, INC. v. STATE of Mississippi ex rel. Rex K. JONES, D.A. of the 12th Judicial District.
    Nos. 48266, 48451.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Thomas, Price, Alston, Jones & Davis, David H. Nutt, Thomas W. Tardy, III, Jackson, Holmes, Dukes & Sullivan, Carl W. Welborn, Hattiesburg, Neil H. Adelman, Chicago, Ill., for appellants.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Jr., Chancellor.

Before RODGERS, P. J., and INZER and SMITH, JJ.

Appeal dismissed.

GILLESPIE, C. J., and PATTERSON, ROBERTSON, SUGG, WALKER and BROOM, JJ.


text:
    William R. PERSON v. Virginia S. PERSON.
    No. 48454.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Singley & Morgan, Columbia, for appellant.
    Dale & Upton, Columbia, for appellee.
   Appeal from Chancery Court, Marion County; Howard L. Patterson, Jr., Chancellor.

Before RODGERS, P. J., and INZER and SMITH, JJ.

Decree appealed from affirmed as modified.

GILLESPIE, G J., and PATTERSON, ROBERTSON, SUGG and WALKER, JJ., concur.

BROOM, J., took no part.


author: RODGERS, Presiding Justice,

text:
    A. F. SUMMER v. Druce Parker HENN et al.
    No. 49132.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Heber A. Ladner, Jr., Jackson, for appellant.
    Young, Scanlon & Sessums, Jackson, for appellees.
   RODGERS, Presiding Justice,

for the Court.

ON MOTION TO DOCKET AND DISMISS

I.

Two of the appellees, Druce Parker Henn and Southern Seafoods, Inc., have moved the Court to docket the appeal of A. F. Summer from a decree of the Chancery Court of the First Judicial District of Hinds County, Mississippi, dated July 8, 1975, and to dismiss the appeal for failure to timely file an appeal bond.

The motion alleges:

(1) That a final decree was entered by the Chancery Court of the First Judicial District of Hinds County, Mississippi, on July 8, 1975, adjudging the appellees-mov-ants herein to be entitled to the sum of $10,000 plus accrued interest interpled into that court (the appellant, A. F. Summer, having contended that he was entitled to said funds.)

(2) The term of the Chancery Court of the First Judicial District of Hinds County, Mississippi, ended on August 8, 1975, at which time the minutes were closed.

(3) That no cost appeal bond was filed until September 25, 1975, being in excess of the forty-five day period in which a bond must be filed as prescribed by Mississippi Code Annotated section 11-51-5 (Supp.1975).

The appellant responded to the motion to docket and dismiss and pointed out that on July 17, 1975, he gave notice to the official court reporter to preserve and transcribe her notes for use in preparing the record for appeal, and filed a copy of same with the chancery clerk on that same day. Also, on July 21, 1975, the appellant filed a Motion for Stay of Execution and Motion for Leave to Appeal Without Supersedeas Bond and prayed that the court stay the execution of the court’s final decree of July 8, 1975, insofar as it ordered the clerk of the chancery court to disburse the inter-pled funds. The appellees contested the motion and the chancery court did not sustain said motion until September 25, 1975, which was in excess of the forty-five day period allowed by section 11-51-5 to file an appeal bond. After the court sustained the motion of appellant to appeal without filing a supersedeas bond (which order contained the provision that it was “ . . . entered without prejudice to any challenge which may exist to the timely perfection of this appeal under applicable law”), a cost bond was immediately filed on September 25,1975.

The appellant contends that his appeal from the decree of the chancery court ordering disbursement of the funds which had been interpled is not governed by Mississippi Code Annotated section 11-51-31 (1972) which provides:

On appeal from ... a final decree of the chancery court where the appellant shall desire a super-sedeas, bond shall be given by the appellant, payable to the opposite party, in a penalty of one hundred twenty-five per cent (125%) of the amount of the decree or judgment appealed from, or one hundred twenty-five per cent (125%) of the amount of the value of the property or other matter in controversy .

It is his contention that since the money in question was actually in the hands of the court, the amount of the supersedeas appeal bond was governed by Mississippi Code Annotated section 11-51-43 (1972), which provides:

In any case of an appeal to the supreme court, where no special provision is made by law for a supersedeas of the judgment or decree appealed from, or for the bond to be given in such case, a supersedeas may be allowed by the court rendering the judgment or decree appealed from or by the judge thereof, or by the supreme court or any of the judges of said court, upon such bond, with such sureties as said court or judge may direct in the order for a supersedeas. (Emphasis added).

In support of this proposition appellant cites Aetna Insurance Company v. Robertson, State Revenue Agent, 127 Miss. 440, 90 So. 120 (1921), which involved a money judgment against the appellant, Aetna and others, in the amount of $8,000,000 as well as an order of the lower court that some $500,000 of impounded monies be paid over to the appellee, State Revenue Agent. There the Court said:

The insurance companies appealed from the decree against them for $8,000,000 [eight million dollars] without supersedeas, and applied to Justice Anderson for a supersedeas as to that portion of the decree directing the impounded funds to be forthwith paid over to the revenue agent. . . . (127 Miss. at 442, 90 So. at 120).
[W]e are of the opinion that the requirements of this section [the forerun ner of section 11-51-31 above quoted] have no application to the granting of the supersedeas staying that part of the judgment ordering the immediate paying over of the impounded funds to the revenue agent, because that part of the judgment ordering the paying over of the funds is separable from the main judgment of liability for $8,000,000 [eight million dollars], as it is a separate order with reference to the disposition of the money, or property, in the hands of the court, while the main judgment is a judgment of liability to pay, which is not stayed, except so far as it may be involved in the order to forthwith turn over the impounded money to the successful litigant. This being true, we think the granting of the supersedeas by Justice Anderson was clearly authorized by the said section 56, Code of 1906 (Section 32, Hemingway’s Code). (Emphasis added). (127 Miss. at 444 45, 90 So. at 121).

The Court went on to say:

The law requiring security by bond for appeals with supersedeas rests upon the just principle that the successful litigant shall be saved harmless from loss, and secured in the fruits of his victory. This is all that should be required of the losing litigant who desires that his case be reviewed on appeal, and that the status quo be maintained until a final decision is rendered in the cause.
Here we have the actual money safely impounded in the hands of the court, to be turned over or applied according to the judgment of the court when finally given. There can be no good reason or necessity for requiring by bond the forthcoming of the money at the final decision when the money is already in the hands of the court. No harm or damage can come to the successful litigant so far as this money is concerned by staying it in the safe possession of the court, because a bond has been required and furnished which amply provides for any loss in the way of interest, statutory damages, and the cost of the appeal. (127 Miss. at 446-47, 90 So.2d at 122).

The appellant argues that in view of the Aetna decision, his Motion for Stay of Execution and Motion for Leave to Appeal without Supersedeas Bond was properly pending before the chancery court during the forty-five day period during which an appeal bond would ordinarily have been required to be filed; and, that the statute, section 11-51-5, limiting the time (45 days) in which an appeal bond must be filed was tolled until such time as the chancery court ruled on the motion. Appellant contends that he had no way of knowing whether he would be required to post a bond in the amount of 125 percent of the judgment as provided in section 11-51-31 or whether he would only be required to post a bond in the penalty of $500 conditioned for the payment of all costs of appeal as provided in section 11-51-29.

On the other hand, the movants-appellees strenuously argue that section 11-51-5 is controlling. That section provides: “Appeals to the supreme court shall be taken within forty-five (45) days next after the rendition of the judgment or decree complained of, and not after, . . . .”

The only exception to the forty-five day period, prescribed by section 11-51-5 in which to file an appeal bond, that this writer has been able to find was where a motion for judgment notwithstanding the verdict or a motion for a new trial was filed. In those cases, this Court held that the period of time in which to file a bond does not run until the motions have been ruled on. Davidson v. Hunsicker, 224 Miss. 203, 79 So.2d 839 (1955); Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642 (1940).

In the case now before us, the appellant’s Motion for Stay of Execution and Motion for Leave to Appeal without Su-persedeas Bond did not in any way affect the finality of the final decree rendered on July 8, 1975, as would a motion for a new trial or motion J.N.O.V. See McGill v. City of Laurel, On Motion to Docket and Dismiss, 252 Miss. 740, 168 So.2d 50, 173 So.2d 892 (1964); Moore v. Montgomery Ward & Co., 171 Miss. 420, 156 So. 875 (1934).

We have held many times that the posting of a cost bond within the forty-five day period of time prescribed by section 11-51-5 is jurisdictional and requires strict compliance. Fisher v. Crowe, 289 So.2d 921 (Miss.1974); National Distillers Products Co. v. City of Jackson, 227 So.2d 477 (Miss.1969); Davidson v. Hunsicker, supra; Johnson v. Mississippi Power Co., supra. In Johnson v. Mississippi Power Co., supra, Chief Justice Smith, speaking for the Court, said: “That statute is plain and unambiguous and must be enforced as written.” (189 Miss. at 73, 196 So. at 644).

When it became apparent that no ruling would be had on the appellant’s Motion for Stay of Execution and Motion for Leave to Appeal without Supersedeas Bond within the forty-five day period, the appellant was required to post a cost bond as provided under section 11-51-29 within the forty-five day period. He could then have filed a motion to the Supreme Court for supersedeas as was done in the Aetna case and as is provided for in section 11-51-43.

In order to uphold the appellant’s contention that the running of the statute (section 11-51-5) was tolled by the filing of his Motion for Stay of Execution and Motion for Leave to Appeal without Su-persedeas Bond, it would be necessary for us to engraft an exception to a long-standing rule. To do so would create one more period of delay in getting appeals to this Court and would be contrary to our efforts to speed up the appellate process.

II.

The appellant next contends, in response to the Motion to Docket and Dismiss, that a cost bond could not have been properly filed during the forty-five day period because the chancery clerk failed to perform his duty under section 11-51-29, to apply to the chancery judge for an order setting bond. He alleges that the chancery clerk had indicated that bond in excess of the $500 provided for by the statute would be required; but that the clerk did not accede to counsel’s request to obtain an order from the court fixing a larger bond as provided by section 11—51— 29. Appellant charges that the clerk’s duty in this regard is mandatory and not permissive. This contention is without merit. Until such time as the court entered an order requiring a greater bond than that provided by the statute, appellant had the right to tender a bond in the sum of $500 with proper sureties as provided by the statute; and, the clerk would have had no authority to refuse to take the bond on the contention that the penalty of the bond was not sufficient. Under these circumstances, the clerk could, if he deemed it necessary, request the court to require additional bond. There is nothing in this record to show that appellant tendered any bond. Therefore, he is in no position to successfully claim that the clerk failed to perform any duty on his part. Section 11-51-29 provides: “ . . . [where] the transcript of the record and of the appeal will exceed five hundred dollars, such clerk or party may apply to the court in which such suit shall have been decided . . . fixing the amount of such bond for costs on appeal.”

There is nothing mandatory about section 11-51-29 which requires the clerk or any party to apply for additional bond. The statute only provides that such persons may apply for a greater bond if the cost of appeal will exceed $500.

We are, therefore, of the opinion that since no "appeal bond was filed within the time required by section 11-51-5 that the motion to docket and dismiss should be sustained.

Motion to Docket and Dismiss sustained.

All Justices concur.

      . The order of Justice Anderson granting the supersedeas provided that the appellant insurance companies enter into “a bond of $500 [five hundred dollars] to cover the cost of appeal, and the further sum of 25 [twenty-five] per cent of the amount of their respective funds impounded, conditioned to pay damages and interest should the decree of the lower court in the main case be affirmed.” (127 Miss. at 442, 90 So. at 120).


text:
    Billy HARRINGTON v. STATE of Mississippi.
    No. 48805.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Pennington, Walker & Turner, West Point, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Joe O. Sams, Sr., Judge.

Before RODGERS, P. J., and INZER and SMITH, JJ.

Affirmed.

GILLESPIE, C. J., and PATTERSON, ROBERTSON, SUGG, WALKER and BROOM, JJ.


text:
    Albert V. GUILLOT v. STATE of Mississippi.
    No. 48811.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    Robert J. LaBine, Gulfport, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Hancock County; J. Ruble Griffin, Judge.

Before INZER, WALKER and BROOM, JJ.

Affirmed.


text:
    Jerry M. ESTES v. Shelia P. ESTES.
    No. 48626.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Sam J. Waits, Grenada, for appellant.
    Mitchell M. Lundy, Grenada, for appel-lee.
   Appeal from Chancery Court, Grenada County; Kermit R. Cofer, Chancellor.

Before GILLESPIE, C. J., and WALKER and BROOM, JJ.

Affirmed.


text:
    Charles W. COLLUM v. Stephanie R. COLLUM.
    No. 48443.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Johnston, Pritchard & Wright, Pasca-goula, for appellant.
    C. R. McRae, Pascagoula, for appellee.
   Appeal, from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

Before GILLESPIE, C. J., and WALKER and BROOM, JJ.

Affirmed.


text:
    DEPOSIT GUARANTY NATIONAL BANK OF JACKSON and Ralph A. Smith v. Mrs. Luvenia McKENZIE.
    No. 48456.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Robert H. McFarland, Bay Springs, O. B. Triplett, Jr., Forest, for appellant.
    Paul G. Swartzfager, Laurel, John M. Sims, Heidelberg, for appellee.
   Appeal from Chancery Court, Jasper County; L. B. Porter, Chancellor.

Before PATTERSON, ROBERTSON and SUGG, JJ.

Affirmed.


text:
    Henry L. JONES v. STATE of Mississippi.
    No. 48837.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Jimmy D. Shelton, Leroy Henderson, Jr., Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

Before RODGERS, P. J., and INZER and SMITH, JJ.

Affirmed.


text:
    Willie H. BURT, III v. STATE of Mississippi.
    No. 48857.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    H. Bernard Gautier, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before PATTERSON, ROBERTSON and SUGG, JJ.

Affirmed.


text:
    Mitchell Travis TANKSLEY v. STATE of Mississippi.
    No. 48864.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Laurel G. Weir, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Noxubee County; Joe O. Sams, Sr., Judge.

Before PATTERSON, ROBERTSON and SUGG, JJ.

Affirmed.


author: RODGERS, Presiding Justice:

text:
    Mrs. Jacquelyn JONES, Administratrix of the Estate of Travis G. Jones, Jr., Deceased v. Earl J. BABST, an Individual, trading and d/b/a Blue Ribbon Tire Service, et al.
    No. 48448.
    Supreme Court of Mississippi.
    Dec. 22, 1975.

      Melvin & Melvin, Sarah L. Entrekin, Leonard B. Melvin, Jr., Laurel, for appellant.
    M. M. Roberts, S. Wayne Easterling, Heidelberg, Sutherland & McKenzie, Hat-tiesburg, for appellees.
    Before RODGERS, INZER and SMITH, JJ.
   RODGERS, Presiding Justice:

This was an appeal from a jury verdict rendered in the Circuit Court of the First Judicial District of Jones County, Mississippi. The jury found in the lower court in favor of the plaintiff against the defendants Pass Road Tire Mart, Inc. and Billy Daniels in the sum of one hundred and ten thousand dollars ($110,000.00).

At the conclusion of the plaintiff’s case, the trial court heard motions by the defendants Earl J. Babst, Super Tire Marts; Inc., and General Motors Corporation. The motions were for peremptory instructions in favor of each of the defendants set forth, and the trial court after hearing the arguments, granted the peremptory instructions.

This suit was brought by Mrs. Jacquelyn Jones, wife of Travis G. Jones, Jr., deceased, as administratrix of the estate of Travis G. Jones, Jr., for his alleged wrongful death which occurred in a one-vehicle traffic accident on April 22, 1970, at approximately 2 P.M. on Highway 15, about nine miles south of Laurel in Jones County, Mississippi.

Travis G. Jones, Jr. was employed on February 16, 1970, by Bush Dairy, Inc., as an ice cream route salesman working out of the company’s Gulfport office. His duties consisted primarily of servicing grocery stores along the Mississippi Gulf Coast, but two days a week he worked a route from Gulfport to Laurel, reloaded his truck at the Bush Dairy Company’s Laurel office and worked a different route back to Gulfport.

Prior to and during April, 1970, Bush Dairy, Inc. had an agreement with the defendant Pass Road Tire Mart, Inc., who did business as Blue Ribbon Tire Service, whereby this defendant was to check the condition of the dairy company’s trucks nightly for flats and damaged tires.

On the evening of April 21, 1970, Travis Jones, Jr. reported that there was a flat on his delivery truck and that he would need the truck the next mprning. The manager of the dairy truck fleet called Blue Ribbon Tire Service, and the defendant Billy Daniels responded. He was driving the service truck owned by Blue Ribbon Tire Service. Daniels reported that the flat could not be repaired and that the condition warranted a replacement. Authorization was given for the replacement of the flat tire. Upon receiving authorization for a new tire, Daniels returned to his place of employment, secured a new tire and tube, and then returned to the dairy. He removed the lug nuts which secured the left rear dual wheels and replaced one of the tires on this set of dual wheels.

On the morning of April 22, 1970, Jones left his employer’s Gulfport headquarters, handled two emergency stops in the Bay St. Louis area, proceeded north to Luce-dale, and thence to Richton. He was destined for Laurel at the time of his accident. The accident occurred about nine miles south of Laurel as the truck was proceeding north on Highway 15. The left rear wheels of the truck came off, thus causing the truck to turn over on its left side, skid down the highway, ignite and burn.

The plaintiff in the lower court, being aggrieved by the jury’s verdict and the court’s granting of the peremptory instructions in favor of the defendants Earl J. Babst, Super Tire Marts, Inc., and General Motors Corporation, appealed to this Court and argues the following assignments of error:

(1) The lower court erred in determining as a matter of law that the proximate cause of the accident was the loose lugs and in sustaining the motion of the defendant, General Motors Corporation, to exclude the evidence in behalf of plaintiff and direct verdict for General Motors.

(2) The court erred in permitting the defendants, Earl J. Babst and Super Tire Marts, Inc., and the defendants, Pass Road Tire Mart, Inc., and Billy Daniels, a total of eight jury challenges, and in permitting both attorneys to cross-examine plaintiff’s witnesses, inasmuch as the interest of these defendants was common or identical.

(3) The court erred in striking certain portions of plaintiff’s second amended declaration on the motion of the defendant, General Motors Corporation.

(4) The verdict of the jury is so inadequate as to shock the conscience of the court and evidences bias and prejudice.

The appellant attempted to induce this Court to view the present case under a strict products liability theory. As support for this contention much emphasis was placed on State Stove Mfg. Co. v. Hodges, 189 So.2d 113 (Miss.1966) and Ford Motor Company v. Matthews, 291 So.2d 169 (Miss.1974). This Court concludes that the facts as set forth in the trial record and as reflected in both the appellant’s and appellees’ briefs distinguish the present case from the strict liability theory cases set out by the appellant.

The facts as reflected in the record bring the present case within the ruling handed down by this Court in Walton v. Chrysler Motor Company, 229 So.2d 568 (Miss.1969), wherein we said:

“We are of the opinion that the automobile manufacturer is not an insurer against the possibility of accidental injury arising out of the use of its product. Muncy v. General Motors Corp., 357 S.W.2d 430 (Tex.Civ.App.1962); Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966); Brown v. General Motors Corp., 355 F.2d 814 (4th Cir. 1966); United States Rubber Co. v. Bauer, 319 F.2d 463 (8th Cir. 1963); Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950); 8 Am.Jur.2d, § 646, page 205 (1963).” 229 So.2d at 572.

This Court also said in Harrist v. Spencer-Harris Tool Co., 244 Miss. 84, 95, 140 So.2d 558, 562 (1962): “No duty rests upon a manufacturer or seller to warn a purchaser of a dangerous design which is obvious. If this were not true, a manufacturer could not design and sell a pocket knife, axe, planer or gun.”

The Fifth Circuit Court of Appeals in Ward v. Hobart Manufacturing Company, 450 F.2d 1176 (5th Cir. 1971), set out the general rule for negligent design cases followed by this Court: “[Wjhere the alleged danger is open and obvious and the manufacturer has done everything necessary to insure that the machine will function properly for its designed purpose any duty owed to a future user has been fulfilled.” 450 F.2d at 1180.

The appellant in the present case had alleged that the system used by General Motors Corporation attaching the dual wheels to the hub of the 1964 Chevrolet Series C-60 truck was defective and unsafe. However, all the experts presented by the plaintiff testified that the dual wheels on this particular truck would not have come off if the lug nuts had been properly installed and torqued to the manufacturer’s specifications. The improper attaching of the lug nuts was the factor which caused the accident and not the system design utilized by the manufacturer.

This Court in Acree v. Collins, 239 Miss. 583, 124 So.2d 118 (1960), addressed itself to the problems of peremptory challenges: “We have held that where the interest of the two parties are identical, they are to be considered as one party for the purpose of ascertaining the number of peremptory challenges they may exercise. Miss. Central R. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737.” 239 Miss. at 587, 124 So.2d at 119.

The interests of the defendants in the present case are not identical; therefore, the trial court was correct in permitting each of the defendants separate jury challenges and also in allowing each of the respective defendant’s attorneys the right to cross-examination of each of the plaintiff’s witnesses.

This Court acknowledges that the trial court was proper in striking certain portions of the plaintiff’s second amended declaration which dealt with the basic engineering design of the Series C-60 truck in which the deceased was traveling at the time of his death. There is no way that the designs excluded by the trial court could be either the cause of the accident or even a contributing factor. The excluded portions dealt with the type of door latches, the type of fuel tank cap, and the location of the fuel tank filler pipe on this particular truck. It remains undisputed that the cause of the accident was that the left rear dual wheels came off the truck as it was proceeding down the highway, causing the truck to flip over on its side, skid down the highway, ignite, and then burn.

It is the opinion of this Court that the verdict returned by the jury in the lower court is not so inadequate as to shock the conscience of the court; neither does it evidence bias or prejudice on their part. The jury had before them all the circumstances and facts necessary to make a just ruling, which we feel that they so did.

For the reasons above set out, it is the opinion of this Court that the jury verdict of the lower court should be, and the same is hereby, affirmed.

Affirmed.

GILLESPIE, C. J., and PATTERSON, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


text:
    NESHOBA COUNTY, Mississippi v. DRANE BEVERAGE COMPANY, INC. and Michael Burdine.
    No. 48449.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Laurel G. Weir, Philadelphia, Crawley & Ford, Kosciusko, for appellant.
    Watkins & Eager, James A. Becker, Jr., Velia Ann Mayer, Jackson, for appellees.
   Appeal from Circuit Court, Attala County; Marshall Perry, Judge.

Before GILLESPIE, C. J., and WALKER and BROOM, JJ.

Affirmed on condition of remittitur.

RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON and SUGG, JJ., concur.


text:
    James S. DICK v. HALLMARK HOMES, INC.
    No. 48392.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Bryan, Nelson, Allen & Schroeder, Robert H. Walker, Gulfport, for appellant.
    Greaves, Terry & Hunter, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before GILLESPIE, C. J., RODGERS, P. J., and ROBERTSON, J.

Reversed and rendered.

PATTERSON, INZER, SMITH, SUGG, WALKER and BROOM, JJ., concur.


text:
    James HIGGASON et ux. v. Otha HARTNESS, Jr., et ux.
    No. 48499.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Deramus & Strickland, John W. Chapman, Louisville, for appellants.
    Eaves & Eaves, Louisville, for appellees.
   Appeal from Chancery Court, Winston County; Robert Prisock, Chancellor.

Before PATTERSON, ROBERTSON and SUGG, JJ.

Appeal dismissed.

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


author: BOLIN, Justice.

text:
    STATE of Louisiana v. Raymond STEVENSON.
    No. 56528.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    John R. Joyce, Wright, Joyce & Jefferson, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   BOLIN, Justice.

Raymond Stevenson was charged with the crime of armed robbery in violation of La.R.S. 14:64. Following a trial by jury defendant was convicted of the crime charged and sentenced to fifteen years’ imprisonment. He appeals urging four assignments of error. We affirm.

The armed robbery was committed at the Seven-Eleven Food Store on Shannon Drive, Monroe, Ouachita Parish, Louisiana. On the evening of February 12, 1975, the defendant and two companions drove to the store location where defendant and one of his confederates entered the store armed with guns, demanded and received from the attendant the store’s receipts, and escaped the scene. The three men were ultimately arrested and the prosecution of this defendant ensued, resulting in his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 3 AND 4

These assignments complain of the trial court’s ruling the oral confession given by defendant was free, voluntary and, hence, admissible. Defendant states three bases for this error. Each basis is made the subject of a separate assignment even though all three refer to the same allegedly erroneous ruling and the attendant consequences.

Defendant first argues the trial court erred in ruling the confession admissible because he initially declined to give a statement and only confessed after he had been confronted by one of his companions and the companion’s brother. It is contended this ruling was erroneous in light of the State’s failure to affirmatively show the confession was not a result of threats against defendant or of his fear of great bodily harm. La.R.S. 15:451. Defendant’s second and third arguments relate to the failure of the interrogating officers to obtain his signature on a waiver of rights form and their failure to use electronic recording equipment to record his confession. Defendant contends that since the forms were readily available and the equipment was at its disposal, the State’s failure to utilize them renders the ruling admitting the confession error.

The record reveals that when the interrogating officers first approached the defendant at approximately 6:00 P.M. on the evening of his arrest, he declined to give any statement. Later in the evening, however, one of the defendant’s arrested companions and the co-arrestee’s brother requested and were granted permission to speak to defendant, after which they reported to the officers that defendant wished to speak to them. After again apprising the defendant of his Miranda rights, the interrogating officers requested a statement from the defendant; in response he confessed his participation in the crime. No written waiver of rights was sought from defendant but an oral waiver was obtained. There is some conflict in the testimony regarding whether the. officers offered to tape the confession, but it is clearly established that one of the interrogating officers took notes within the defendant’s view during the taking of the confession.

The interrogating officers and defendant’s companion testified on behalf of the State at the hearing outside the jury’s presence to establish the free and voluntary nature of the confession prior to its admission into evidence. Both officers testified they had not threatened nor coerced the defendant in any way. They likewise testified that during the time defendant spoke privately with his companion and the man’s brother, the officers occasionally viewed them through a window to assure that the discussion was calm. The record reveals that no physical coercion was observed and that no loud threats were heard. The officers acknowledged softly spoken threats would have escaped their notice, but there is no testimony to establish any such threats were made.

The defendant presented no witnesses who attacked the State’s showing of the free and voluntary nature of the confession during the admissibility hearing out of the presence of the jury. The record does reveal the defendant testified in his own behalf after the close of the State’s case in chief. He said that a promise of freedom was made by his confederate’s brother in exchange for cooperation and confession. Defendant likewise testified he did not confess to being present at the Seven-Eleven Store on the night of the robbery and did not state he had robbed anyone on that evening. However, his testimony came during the presentation of his defense, long after the admissibility of the confession had been determined out of the jury’s presence and, hence, the only effect it has concerns the weight to be given the confession, and not the admissibility thereof. State v. Sears, 298 So.2d 814 (La.1974). After a thorough review of the pertinent testimony, we hold the trial court did not err in ruling the confession admissible.

We find the defendant’s argument relative to the officers’ failure to obtain a waiver of rights form lacks merit. As we stated in State v. Lewis, “ * * * [t]here is no requirement in Miranda that the waiver of rights be in writing. * * * [P]roof of the waiver * * * may * * * be established by other evidence.” State v. Lewis, 315 So.2d 626, 629 (La.1975). Likewise, defendant cites no authority for his argument that the officers’ failure to electronically record his confession establishes that it was not free and voluntary and we know of no law which mandates such a finding under the circumstances. Nor are we impressed with defendant’s argument that his initial refusal to discuss the matter with the officers establishes the later confession- was involuntary. In State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972) the Court explicitly recognized that an accused’s decision to change his mind and give a statement after having previously refused to do so does not signal impropriety nor mandate exclusion of the confession, provided the statement was voluntarily and freely given. The Higginbotham case was cited with approval most recently by the Court in State v. Peevy, 321 So.2d 324 (La. decided November 3, 1975).

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant complains in this assignment that the trial court erred in allowing the in-court identification by another, accused of participation in the same crime, in light of the inability of the victim and the only eyewitness to identify him as one of the robbers.

The defendant’s complaint does not deal with identification but rather attacks the co-accused’s testimony which implicated him in the armed robbery. First, it appears from the portions of the record designated in connection with this assignment of error that the testimony of the co-accused which inculpated defendant was given outside the presence of the jury, during the hearing to determine the admissibility of the defendant’s confession. Even if the co-accused did testify against the defendant in the jury’s presence and implicate him, we are constrained to hold that the complaint lacks merit. The trial court’s per curiam reflects that no objection was made during trial to the co-accused’s “identification” of defendant. The trial court correctly notes that the contention of defendant “ * * * in reality relates only to the credibility of * * * [co-accused’s] testimony. * * * ” This observation is correct, and the relative weight to be given a witness’ testimony is an issue which must be determined by the finder of fact.

This assignment of error lacks merit.

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

       The record reveals that the robbers both had stockings over their faces, and the face of one of them was further obscured by a bandana.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Lathan KNIGHT.
    No. 56756.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Louis A. Heyd, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Lathan Knight was charged by bill of information with the armed robbery of Harvey Luker in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged and subsequently sentenced to serve twelve years at hard labor. On appeal, he relies upon eight assignments of error for reversal of his conviction and sentence.

FACTS

At about 9:45 on the evening of July 25, 1974, two men drove their yellow Pinto into the Hudson Oil Station on the Chef Menteur Highway in New Orleans. They approached the manager and sole attendant, Harvey Luker, and sought his assistance in checking the oil in their car. The two men remained at the station until it was cleared of customers and then one of the men pulled a gun on Luker and told him to get inside. This man took the money in Luker’s pockets and his money changer and then went outside and began to operate the business as an attendant. In the meanwhile, defendant, also armed with a gun, ordered Luker to the back room and told him to open the safe. Upon being advised that the safe was in the front of the station, they returned to this area where Luker was required to open the safe, remove the money and place it on the floor. Defendant then put the money into a paper bag and ordered Luker to return to the back room and lie on the floor. There, he tied his hands and feet with adhesive tape. Thereafter, defendant and the other robber left in their car. In a few minutes, Luker was able to free himself. He furnished a description of the two men to the authorities. Some months later, an officer investigating a different robbery was given the name of Lathan Knight as the robber of the Hudson Oil Station. This officer then took ten photographs which included that of defendant and other suspects to Luker, who made a positive identification of La-than Knight. Arrest and prosecution of Knight then followed.

ASSIGNMENTS OF ERROR NOS. 1, 2, 3 AND 4

These assigned errors relate to the court’s rulings that the state was not required to furnish certain particulars requested by defendant in his motion for a bill of particulars. The five requests not required to be answered by the state are:

3. State what description was given of the alleged perpetrators.
4. State what clothing the alleged perpetrators were wearing at the time the offense was allegedly committed.
7. State what procedures were used in preparation of the lineup.
9. State the exact place and location that the prosecuting witness was located at the time the lineup was being prepared.
11. State whether or not any other witnesses were allegedly at the scene at the time that the alleged crime was to have been committed other than Harvey Lu-ker.

It is argued that, since the only evidence of guilt depended upon the identification of defendant by Luker, it was essential that the defense be given the description of the perpetrators and their clothing as related by Luker, as well as the circumstances surrounding the lineup procedure, in order to test the credibility and memory of the victim. Also claimed necessary in preparation for trial was information as to whether there were witnesses to the crime other than the victim.

According to the record, immediately after the hearing on the sufficiency of the responses of the state to defendant’s application for a bill of particulars, a hearing on the motion to suppress the identification was conducted. At this hearing, the victim responded to questions concerning the description and clothing of defendant given by him to the police at the time of the robbery. Luker also answered questions regarding the circumstances surrounding the lineup and his location at the time. Likewise, the officer who conducted the lineup testified as to the manner in which it was held. Hence, most if not all, of the information sought and denied by the trial judge’s rulings, except as to the eyewitnesses other than the victim, was obtained at this hearing conducted nearly a month before trial.

The purpose of a bill of particulars is to inform the defendant more specifically of the nature and cause of the charge against him.. However, the defendant is not entitled to the details of the evidence with which the state expects to prove its case. State v. Womack, 283 So.2d 708 (La.1973). Specifically, the state need not supply the names and addresses of witnesses to the crime. State v. Kado, 300 So.2d 461 (La.1974). Likewise, the state is not obliged to furnish information regarding the circumstances surrounding the identification of the defendant. State v. Breston, 304 So.2d 313 (La.1974). Hence, the rulings of the trial judge were correct. These assigned errors are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the trial judge erred in denying his motion to suppress the identification of defendant. Defendant’s objection is that the lineup identification and subsequent in-court identification were tainted by an earlier photographic identification.

The armed robbery of Harvey Luker for which defendant was charged occurred at the Hudson Oil Station on July 25, 1974. About three months later (October 31, 1974), two police officers visited Luker at the station and exhibited to him a series of ten photographs. At this time, one of the police officers stated: “I advised Mr. Lu-ker I had suspects.” Defendant argues that this “suggestive reference” by the police officer rendered the photographic identification impermissibly suggestive. The lineup was conducted on November 12, 1974, and the trial was held on April 8-9, 1975.

In determining whether an identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification, reference must be made to all* the surrounding circumstances. State v. Rhodes, 308 So.2d 770 (La.1975).

In the instant case, the officer who displayed the photographs to Luker testified that in the course of an investigation of another armed robbery he received information that defendant was involved in an armed robbery of the Hudson Oil Station. He also obtained names of other armed robbery suspects in the area. He then secured defendant’s photograph along with those of other suspects and brought them to the station and displayed them to Luker. It was at this time that the officer stated he had “suspects.” No other comment or reference to the possible suspect was made. The context of the officer’s entire testimony is that the officer’s remark did nothing more than explain the nature of his visit. Whenever a victim is shown a group of pictures or is summoned to a lineup, it is generally assumed that a “suspect” is there present. Thus, in this context, the officer’s reference to “suspects” does not justify a conclusion that the procedure here used was impermissibly suggestive.

Moreover, the courtroom identification had an independent basis. The robbery, which lasted five to seven minutes, occurred in a well-lighted area. Mr. Luker testified that he was in close proximity to defendant during the entire time. Likewise, Luker recognized defendant as having visited his place of business prior to the robbery. At trial, Luker definitely identified defendant as one of the robbers. In sum, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

During cross-examination of Morris Joseph, a character witness for the defense, the state asked: “Did you know that La-than Knight on June, 1965 was arrested for simple burglary?” At that time, defendant was a juvenile. Defendant moved for a mistrial, which was denied. Defendant argues that the reference to his prior juvenile arrest constitutes reversible error.

Evidence of a prior arrest is not admissible for the purpose of impeaching the credibility of a witness. La.R.S. 15:495. However, in State v. Banks, 307 So.2d 594 (La.1974), we stated:

Nevertheless, in spite of the prohibition in R.S. 15:495, when the question has arisen in this court, we have held that it is not reversible error for the prosecution to ask a character witness for the defendant about his knowledge of prior arrests. State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965).

In Banks on cross-examination of a character witness called by defendant, the prosecutor asked: “Did you know he was arrested for simple burglary?” This question is identical to the question asked here. However, defendant argues that, since the question here makes reference to a juvenile arrest, this case is distinguishable from Banks. We do not agree. In our view, it is a distinction without a difference. Banks is dispositive of the issue here. Cf. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Moreover, Mrs. Mildred Knight, mother of defendant, had previously testified that: “I never had any problem with Lathan, not even as a juvenile . . . .” This represents a further injection by defendant of the issue of his juvenile record into the case. The motion for mistrial was correctly denied.

ASSIGNMENT OF ERROR NO. 7

After the state had asked the question of Morris Joseph, a character witness called by defendant, which was the subject of the last assigned error, the court ruled that it would not permit further questions regarding defendant’s prior arrests. The next character witness, Mrs. Ida Butler, was called by the defense. During the cross-examination of this witness and after an objection to a question asked by the state was sustained, the prosecutor stated: “Well, Your Honor, I want to object to the whole witness’ testimony because you have effectively deprived me of any cross-examination by this ruling and I would move to strike her whole testimony.” Defendant argues that this remark was irrelevant, immaterial and also of such a nature as to create prejudice against defendant in the minds of the jury and that under article 771 of the Code of Criminal Procedure, the judge should have admonished the jury to disregard the remark. We do not consider that the remark was of such a prejudicial nature as to require an admonishment. In any event, the record reveals that defendant did not request such an admonishment. Article 771 requires that such a request be made. Hence, failure to object to an irregularity at the time of its occurrence cannot be availed of after verdict. La.Code Crim.P. art. 841, as amended, La.Acts 1974, No. 297, § 1. Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8'

This assignment of error is leveled at the trial judge’s denial of a motion for a new trial. Defendant asserts that the verdict is contrary to the law and evidence in that the state presented insufficient evidence to sustain a verdict of guilty. Secondly, he reurges several of the same errors which were the subject of previous assignments of error. He also asserts that the jury, after being deadlocked, was further charged by the judge and asked to continue its deliberations, which resulted in a verdict of “convenience” rather than one based upon the law and evidence, citing as authority State v. Nicholson, 315 So.2d 639 (La.1975). Finally, defendant claims that the ends of justice would be served by the granting of a new trial.

The allegation that the verdict is contrary to the law and evidence in that the evidence is insufficient to sustain the verdict of guilty presents nothing for our appellate review. We review only claims of no evidence of the crime charged or an essential element thereof. Furthermore, we reject the reurged errors for the same reasons set forth in the previous assignments of error. The complaint in connection with the judge’s further charges to the jury after it had retired to deliberate upon the verdict is likewise without merit. The record does not contain the charge complained of nor does it reflect that any objection or motion for mistrial was made at the time of occurrence. Hence, failure to object to an irregularity, if any, at the time of its occurrence cannot be availed of after verdict. La.Code Crim.P. art. 841, as amended, La.Acts 1974, No. 297, § 1. Finally, no showing has been made that an injustice has been suffered by defendant warranting the granting of a new trial. In sum, the trial judge correctly denied the motion for a new trial.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

      . La.Code Crim.P. art. 771 provides:
      In the following cases, -upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. (Emphasis added.)