author: INZER, Justice.

text:
    Arthur L. STEVENSON v. STATE of Mississippi.
    No. 48569.
    Supreme Court of Mississippi.
    Dec. 15, 1975.

      R. Jess Brown, Jackson, James E. Win-field, Vicksburg, Mark Shenfield, Jackson, Phillip J. Brookins, New York City, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   INZER, Justice.

Appellant, Arthur L. Stevenson, about 24 years old, was indicted, tried and convicted in the Circuit Court of Warren County for capital murder pursuant to Section 97-3-19(2) (a), Mississippi Code 1972 Annotated (Supp.1974), for the killing of A. H. “Holly” Koerper, a deputy sheriff who was acting in his official capacity.

The evidence on behalf of the state established that at about 6 A.M. on July 6, 1974, appellant, while a trusty in the Warren County Jail, killed Holly Koerper, a deputy sheriff, by stabbing him twenty-seven times with a knife. Wilbert Thames, another trusty, testified on the morning in question he washed the dishes and went back to bed. At that time appellant was mopping the floor. Thames went back to sleep and was awakened shortly thereafter by someone hollering and he heard Koer-per say, “Arthur. Arthur Lee, please don’t kill me.” Thames rushed into the hall and saw Koerper on the floor with appellant kneeling over him with a knife in his hand. He said he thought appellant said, “don’t nobody slap me.” Appellant told Thames if he came any closer he “would get the same thing.” Thames then returned to his • cell and awakened another trusty. Shortly thereafter appellant returned to the cell and asked Thames and the other trusty if they were going with him and they told him they were not. Appellant then washed his hands and unlocked the cell where Geneva Mitchell was incarcerated and told her to get dressed. Appellant and Geneva then left. Later that day, appellant and Geneva were found in an abandoned building approximately three blocks from the jail.

Sheriff Paul Barrett was informed of the murder, and when he arrived at the jail, he found Koerper lying partially in the kitchen and partially in the dining room. He also found a bloody butcher knife on the dining room table. His investigation revealed that the locked drawer in which the knives were kept had been pried open as had a steel cabinet in which the prisoners’ personal belongings were kept. The contents of the cabinet were scattered over the floor and all the money and several other articles were missing.

On July 10, 1974, appellant was indicted by the Grand Jury and on July IS he was arraigned. On July 22, 1974, he was tried. This trial resulted in a mistrial because the jury failed to agree on a verdict. He was retried on July 31, 1974, and was convicted.

Appellant assigns numerous grounds for the reversal of this case. We will discuss only those assignments which merit discussion.

It is contended that the trial court was in error in overruling his motion to quash the indictment on the ground that the punishment provided in the statute is cruel and inhuman and in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States.

Appellant’s principal argument with regard to the constitutionality of our capital murder law, Sections 97-3-17 and 97-3-21, Mississippi Code 1972 Annotated (Supp.1974), is that the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), prohibited any arbitrary application of the death penalty upon conviction, and that our statute by merely making mandatory capital punishment in certain enumerated circumstances does not cure the problem of arbitrary application of the death penalty for certain criminals. Appellant points to the discretion which is built into our system of justice; namely, prosecutor-ial discretion, plea bargaining, jury discretion, appellate review and executive clemency. However, .as we understand Fur-man, the discretion which three of the five justices of the majority found to be constitutionally impermissible was the discretion vested in the judge or jury with regard to the infliction of the penalty and not with regard to the question of guilt; “people live or die, depending on the will of one man or twelve.”

Since this is the first case reaching this Court under our capital murder statute, we have not heretofore considered the issue of whether the discretionary aspect of the administration of justice, other than those afforded a judge and jury are constitutionally impermissible, but we find that the Supreme Court of North Carolina considered this argument in State v. Woodson, 287 N. C. 578, 215 S.E.2d 607 (1975). In that case the prosecutor exercised his discretion by determining which of the defendants were permitted to plea bargain and which were tried for a greater offense. Two of the four defendants were allowed to plead guilty to armed robbery while the other two were indicted for first degree murder, the conviction of which required a mandatory death sentence. Appellant alleged that it was “fundamentally unfair” to permit two to plead guilty to less than a capital offense in exchange for their testimony to convict the other two. In rejecting this argument the court quoted from Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967), as follows:

To say that the United States Attorney must literally plead every offense and every offender alike is to delegate him an impossible task; of course, this concept would negate discretion. Myriad factors can enter into the prosecutor’s decision. Two persons may have committed what is precisely the same legal offense but the prosecutor is not compelled by law, duty or tradition to treat them the same as to the charges. On the contrary, he is expected to exercise discretion and common sense to the end that if, for example, one is a young first offender and the other older, with a criminal record, or one played a lesser and the other a dominant role, one the instigator and the other the follower, the prosecutor can and should take such factors into account; no court has any jurisdiction to inquire into or review his decision (Woodson, supra, at 618).

That Court further stated:

Mere selectivity in prosecution creates no constitutional problems. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). To invoke the defense [denial of equal protection under the Fourteenth Amendment] one must prove that the selection was deliberately based on an unjustifiable standard, such as race, religion, or other arbitrary classification. United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972).

(Id. at 618).

It is obvious to us that the discretion of a prosecutor and his power to plea bargain is constitutionally permissible. If such discretion were impermissible with regard to prosecution for a capital offense, then it would be impermissible with regard to a prosecution for any crime. Without prosecutorial discretion and plea bargaining, our system of justice could not function. Jury discretion, appellate review, and executive clemency have always been checks built into our system.

Citing society’s repudiation of the death penalty, world-wide trends toward the abolition of the penalty, frequent jury nullifications, and the lack of useful purpose, appellant contends that the imposition of the penalty pursuant to the statute would constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States. This view was the one espoused by two of the justices in their concurring opinion in Furman. However, only these two justices were prepared to hold that capital punishment per se was unconstitutional; two other justices specifically reserved the question and limited their decision to hold that only the arbitrary infliction of the death penalty constituted cruel and unusual punishment. Consequently, under the decision in Furman, a mandatory death penalty statute is constitutional, when, as in this case, no showing was made that it was discriminatorily applied. Especially is this true in the light of Section 99-17-20, which prohibits the judge from instructing the jury on any lesser included offenses. Appellant in this case requested the instructions on lesser included offenses and the court properly refused to grant such instructions. Under this statute the jury has the option either to convict or to acquit the defendant and nothing more.

We thoroughly considered the question of the constitutionality of the death penalty in Peterson v. State, 268 So.2d 335 (Miss.1973), wherein we stated:

The personal views of the several Judges of this Court on the question of the death penalty in general, or on its application in a particular case, should not affect its constitutionality. Along with every thoughtful person we stand in awe before the judgment of death, painfully aware of human frailty, including our own, and the finality of death. But we are aware that difficult decisions must be made. Punishment has been a part of the history of the human race, and we cannot say at this particular moment in time that the shadow of the death penalty does not deter, or that it does not have a proper and constitutional part in dealing with the age-old and ever-increasing problem of crime.

(268 So.2d at 338).

We find that nothing has transpired since this decision to cause us to change our views with regard to the infliction of the death penalty. In fact, events that have transpired in the past three years cause us to be more thoroughly convinced that the death penalty does have a proper and constitutional part in dealing with the increasing problem of crime.

Appellant contends that the failure of the trial court to appoint a psychiatrist to examine appellant where there was reasonable probability that appellant was not mentally competent to stand trial, deprives appellant of his right to a fair trial and due process of law.

Counsel for appellant filed a sworn motion asking the court to commit appellant to the Mississippi State Hospital for examination to determine the question of appellant’s sanity and his ability to make a rational defense of the charge pending against him. As a basis for the motion, the attorneys stated that in their opinion appellant was insane, and because of his insanity, he was not able to make a rational defense. The motion was made pursuant to Section 99-13-11, Mississippi Code 1972 Annotated, which authorizes the circuit court in any criminal action in which the mental condition of the person indicted for a felony is questioned to order a mental examination by a psychiatrist selected by the court to determine his ability to make a defense.

In support of the motion, four witnesses testified on behalf of the appellant. His mother testified that in her opinion the appellant was not sane. She said he had never acted like a normal person; in 1959 he was hit in the head by a bat, and since that time his behavior had become “funnier.” She further testified that since the incident with the bat, he had been in and out of trouble, that he had been in the penitentiary on two occasions, and that the last time he was released he came home on Saturday and was back in jail on another charge on Monday. She had seen him on three occasions since he had been in jail and to her he seemed to be “off” and would hardly talk to her. She said on one occasion he did not act like he recognized her, and that on another occasion, he did talk to her.

The next two witnesses had not had an opportunity to observe the appellant in the last three or four years, but they gave a history of his unusual behavior prior to that time. In their opinion he was not sane.

Dr. Otrie Hickerson Smith, a qualified and experienced psychiatrist, testified that she examined appellant on July 14, 1974, the day before the hearing on the motion, for a period of about forty minutes. She testified that based on her examination it was her opinion that appellant was mentally incapable of making a rational defense to the charges against him. Due to her limited examination she was unable to determine whether appellant was suffering from a psychosis or neurosis, but advised further examination. She concluded on the basis of her examination that appellant should not be required to stand trial without further psychiatric examination.

In rebuttal the state called four witnesses all of whom were law enforcement officers who testified that they saw no difference in appellant’s mental condition since the homicide, and in their opinion he was not insane and was able to confer with his attorneys about the facts in the case.

The trial court was of the opinion that the movant failed to meet his burden of proof and that the testimony did not reveal any inadequacy of the defendant to present his defense. We cannot ascertain from the opinion of the trial court whether the court considered the question of whether the testimony raised a reasonable probability that the defendant was incapable of making a rational defense. We pointed out in McGinnis v. State, 241 Miss. 883, 133 So.2d 399 (1961), that although the provisions of Chapter 262, Laws of 1960, now Section 99-13-11, Mississippi Code 1972 Annotated, did not mandatorily require that the trial court order a psychiatric examination of an accused when his present ability to conduct a rational defense is in question, the salutary purpose of the statute is to avoid the trial of a defendant for a crime in this state unless he is at the time capable of conducting a rational defense by intelligently conferring with counsel as to the facts in connection with the crime. We have held in a number of cases that if the showing before the trial court is sufficient to engender a reasonable probability that the defendant is incapable of making a rational defense, then a psychiatrist should be appointed to make the examination or that the defendant should be sent to the Mississippi State Hospital at Whitfield for examination and evaluation. Robinson v. State, 223 Miss. 70, 77 So.2d 265 (1955).

We have carefully examined the evidence on this issue and have reached the conclusion that it was sufficiently raised and there was a reasonable probability that the defendant was incapable of making a rational defense and the trial court was in error in failing to sustain the motion. Therefore, this case must be reversed and remanded in order that this issue may be definitely determined prior to another trial.

Although this case must be reversed on the issue above, other issues were raised that should be decided prior to another trial.

Appellant contends that the trial court was in error in overruling his motion for a change of venue because of widespread prejudicial pre-trial publicity. The state presented six witnesses who testified in essence that in their opinion the appellant could get a fair trial in Warren County. Appellant presented an equal, number of witnesses who testified because of the widespread publicity by the news media and because the person killed was a popular law enforcement officer, the appellant could not get a fair trial in Warren County. We do not deem it necessary to detail the testimony in this regard. It is sufficient to say that at the time the motion was made it was properly overruled. However, after a thorough study of the entire record in this case, we find the facts and circumstances such that we are of the opinion that the trial court should have sustained appellant’s motion for a new trial and changed the venue to another county. We pointed out in Peterson v. State, 242 So.2d 420 (Miss.1970), that in passing upon an application for a change of venue, the court looks to the completed trial and if it appears that the case has been prejudged or that conditions existed which prevented the defendant from securing a fair and impartial trial, then the court should sustain the motion even though it appears upon a motion for a new trial. We are convinced from the entire record in this case that this case should not have been tried in Warren County and we direct that the venue be changed to another county.

Appellant also contends that he was denied a fair trial because the trial court refused to excuse two of the veniremen for cause; applied unconstitutional standards in excusing veniremen because of their views regarding capital punishment; and systematically excluded veniremen with conscientious scruples against capital punishment which denied him his Sixth Amendment right to a representative jury.

After a review of the record we find that the trial court was in error in refusing to excuse two veniremen for cause, but since this error is not likely to occur in another trial, we will not pursue it other than to reiterate what this Court said in Klyce v. State, 79 Miss. 652, 31 So. 339 (1902) :

It would nullify the constitutional provision, and seriously endanger the fairness of trials, to hold a juror who had an opinion competent merely because he says he could try the case impartially. When they say so and they think so, it is for the court to say whether in fact he can view in the light of the weakness of human nature.

(31 So. at 340).

We also find that the trial court did excuse two veniremen after they stated that they did not believe in capital punishment without questioning them to discover whether they could still follow the law and convict the defendant if the evidence so warranted. In Myers v. State, 254 So.2d 891 (Miss.1971), we stated the rule in this regard as follows:

The proper method of bringing the death penalty to the attention of the special veniremen is for the trial judge to inform them that they have been summoned as veniremen in a capital case and that a verdict of guilty could result in the infliction of a death penalty. The judge should then ask them if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper cases, and where the testimony warrants it. If there are those who say they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless, follow the testimony and the instructions of the court and return a verdict of guilty, although that verdict could result in the death penalty, if they, being the judges of the weight and worth of the evidence, were convinced of the guilt of the defendant and the circumstances warranted such a verdict. Those who say they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released.

(254 So.2d at 893, 894).

This rule is still in effect, but of course, where as in this case, the conviction carries a mandatory death penalty, it is proper for the trial judge to so inform the veniremen.

We find no merit in appellant’s argument that the exclusion of veniremen with conscientious scruples violated his Sixth Amendment right to a representative jury. Citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), appellant contends that since the court held that a jury must be drawn from a representative cross section of the community, he was denied his constitutional right to a representative jury because a cross section necessarily includes those who do not believe in capital punishment. It is obvious that it would be futile for the state to try an accused charged with an offense that carries a mandatory death penalty by a jury composed of one or more jurors who have religious or conscientious scruples against the infliction of the death penalty under any circumstances, and who would not follow the evidence and instructions of the court, and return a verdict of guilty even though they were convinced beyond a reasonable doubt of the guilt of the defendant. Such persons are not competent jurors in a capital case and the court should exclude such persons.

Appellant also contends that the trial court erred in allowing the introduction into evidence of two photographs of the deceased because they were without probative value and merely inflamed the jury. The two photographs in question were taken at the funeral home after the body had been washed, and were introduced in addition to two photographs taken at the scene of the crime, the introduction of which is not complained of on appeal. The state contends that the photographs in question had probative value because as indicated by the testimony the number of wounds was impossible to determine until the body had been washed. While we would not reverse this case on this ground alone, a review of the record convinces us that these two photographs had no probative value and on retrial should not be admitted in evidence. It is obvious from the pictures that they were not introduced to show the number of wounds inflicted because the body was posed in such a manner to unduly emphasize the most serious wounds.

After a careful review of the record and briefs by the Court en banc, for the reasons stated, this cause must be and is reversed and remanded for another trial.

Reversed and remanded.

All Justices concur.


source: Caselaw Access Project

author: ROBERTSON, Justice:

license: Public Domain

text:
    Alvin GILES v. STATE of Mississippi.
    No. 48681.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    Firnist J. Alexander, Jr., Jackson, for appellant.
    A.. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   ROBERTSON, Justice:

Alvin Giles was convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, of the murder of Bemo Carruthers and sentenced to life imprisonment in the penitentiary. Car-ruthers operated Sunlight Cleaners, a small cleaning establishment located at 506 West Pascagoula Street, Jackson, Mississippi. Between 11:30 a. m. and 12:00 Noon, on June 28, .1973, while at work, he was shot and killed in an apparent robbery attempt.

Appellant assigned these three grounds of error:

“1. The court erred in refusing to require the state to comply with the court’s order directing the production and disclosure of evidence.
2. The verdict of the jury was not supported by competent or reliable evidence in that the prosecution failed to exclude all other reasonable hypotheses other than the defendant’s guilt though all evidence was circumstantial.
3. The court erred in refusing to suppress evidence illegally seized from defendant.”

About 11:45 A. M., June 28, 1973, Stub-blefield and Bounds of the Jackson Police Department found Carruthers lying on his back behind the counter of Sunlight Cleaners. He had been killed with two shots from a 38-caliber pistol. His belt was found on the floor near his body, along with a keyring containing 15 or 20 keys. A half-smoked cigar and two 38-caliber slugs were also found on the floor near his body.

Alvin Giles, a 16-year-old male, lived with his mother at 524 Lynch Street. About 8:30 A. M. on June 28, 1973, Giles went next door to check with Buster Allen, a blind neighbor, to see if he needed anything from the grocery store. Giles frequently ran errands for Allen, for which Allen paid him. Giles asked if he could use the bathroom but stayed in it so long that Allen became suspicious.

When Giles came out of the bathroom, Allen asked him to stay and visit but Giles refused and left very abruptly. Allen immediately checked the dresser drawer next to the bathroom where he always kept his 38-caliber pistol and found it missing. He called Mrs. Giles, Alvin’s mother, and told her that Alvin had taken his pistol. He then called the police and reported that his pistol had been stolen by Alvin Giles.

In the meantime, Giles had returned home, changed clothes and left for Blackburn Junior High School to run track and shoot basketball. At the trial, Giles testified that he had gone by Sunlight Cleaners that morning, that he shot basketball until about 11:30 or 12:00 Noon, and then went behind the school where he met "a buddy of mine, Jerry Washington”, who gave Giles a billfold to keep for him. Giles stated that he had seen Jerry at Blackburn school about 20 times, that it was customary for Washington and other boys to gamble on the track behind the junior high school, and that Washington had given him billfolds to keep for him while he was gambling on four or five previous occasions. In each instance, Giles would return the billfold to Washington later.

On direct examination, Giles stated:

“Q On those occasions, when he’d give you this wallet, what would you do with it?
A I’d open it up and look for his I.D. card.
Q Did you look for it at this time?
A No.”
On cross-examination, Giles testified:
“No. When I got it, I just opened it up and looked in it, but I didn’t count the money in the billfold.”

Giles further testified that when he got ready to leave he saw Washington, and Washington asked him to keep the wallet for him and to meet him on Valley Street at “the place where we’d been going to before.” Giles had known Jerry Washington for about four years, having become acquainted with him when they went to school together in Yazoo City.

While investigating at the Sunlight Cleaners, Sergeant Barfield of the Jackson Police Department learned from the department that Allen had reported his 38-caliber pistol stolen by Giles. Based on this information and the fact that two 38-caliber slugs were found near the body of the decedent, Sergeants Barfield and Taylor went to Giles’ home, which was about 300 yards from the cleaners.

Giles agreed to go to police headquarters with them to take a trace metal detection test. As Giles walked down the corridor of the jail ahead of Sgt. Barfield, Barfield noticed a large bulge in his right rear pocket. He removed the bulge, which turned out to be two billfolds.

The first billfold that Barfield opened contained a driver’s license, an Aetna Insurance card, a First National Bank checking account card, a Super D Drug Store senior citizen’s card, and a social security card, all in the name of “Bemo Carruth-ers.” Giles was thereupon arrested, and advised of his Miranda rights. According to Barfield, Giles stated to him that he had been shooting basketball at Blackburn Junior High School, and that “he had been by the cleaners at approximately eleven o’clock that morning.”

Although the police searched for Jerry Washington and inquired as to his whereabouts, they were never able to locate him.

The first assignment of error was that the State failed to disclose to the appellant the Jackson Police Department’s fruitless search for Jerry Washington.

After Officer Stubblefield had testified, the appellant moved for a directed verdict or in the alternative for a mistrial on the ground that the State had failed to disclose such evidence. The trial court, in overruling both motions, said:

“Jerry Washington is the man that this defendant said he knew. He certainly would have known where his location was.
“It is obvious that the police department put out an all-points-order in an effort to try to locate a Jerry Washington.
“There is nothing exculpatory in any of the testimony given about a Jerry Washington, and I’ll overrule both motions, the motion for a mistrial and the motion for a directed verdict.” (Emphasis added).

Donald Ates of the Ballistics Division of the Jackson Crime Laboratory, testified as an expert on ammunition. He had carefully compared the one 38-caliber slug recovered in good condition at the scene of the crime with a 38-caliber bullet taken from Allen’s dresser drawer. Each had identical casting die marks indicating that they both had a common origin. Ates further testified:

“The cast reload ammunition from Mr. Allen’s house, and one of the projectiles, the one that was in good shape, that a comparison could be made on, had the same microscopic physical characteristics, indicating they were molded in the same mold.”

Appellant argued also that the court committed error in not requiring the State to furnish a copy of Ates’ written report to the appellant before trial. When the appellant made his motion for a directed verdict or in the alternative a mistrial, the court overruled both motions but advised defense counsel that he would give him 30 minutes to examine the report. Defense counsel admitted that he had seen the 38-caliber bullets, the physical evidence, but had not seen the report until Ates testified.

The court was correct in overruling these motions because this report was not of an exculpatory nature. Moreover, the court gave the appellant 30 minutes to examine Ates’ report before cross-examining him.

Appellant contends that the recovery of the billfold of Bemo Carruthers from the right rear pocket of appellant was the result of an illegal search and should not have been admitted into evidence.

We think that the court was correct in refusing to suppress this evidence. The facts known to Barfield and Taylor at the time they went to Giles’ home were sufficient to constitute probable cause for arresting and searching him at that time. Since probable cause existed for an immediate arrest and search, it makes no difference that Barfield waited a few minutes, until Giles was at the city jail, to search him.

From the evidence adduced, the jury was justified in finding the appellant guilty beyond a reasonable doubt and to a moral certainty after excluding every other reasonable hypothesis consistent with innocence.

The conviction and sentence are, therefore, affirmed.

Affirmed.

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


text:
    J. B. GILMER v. STATE of Mississippi.
    No. 48867.
    Supreme Court of Mississippi.
    Jan. 6, 1976.
    Rehearing Denied Feb. 3, 1976.
    James B. Everett, Decatur, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp.- Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   Affirmed.

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


author: PATTERSON, Justice: SMITH, Justice BROOM, Justice GILLESPIE, Chief Justice SUGG, Justice

text:
    ABC INTERSTATE THEATRES, INC., Defendant-Appellant, v. STATE of Mississippi, Complainant-Appellee.
    No. 48583.
    Supreme Court of Mississippi.
    Jan. 13, 1976.

      Thomas, Price, Alston, Jones & Davis, Jackson, Phillip A. Wittmann, Anthony M. DiLeo, New Orleans, La., for defendant-appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for complainant-appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   PATTERSON, Justice:

This appeal arises from the Circuit Court of Forrest County as the result of the seizure by the state of the film “The Exorcist,” and the subsequent conviction of ABC Interstate Theatres, Inc., on the charge that the film was “obscene, indecent, or immoral” as these terms are used in Mississippi Code Annotated section 97-29-33 (1972). The appellant assigns as error, among other assignments, that the statute under which it was convicted is unconstitutionally overbroad.

In April 1974 several police officers and a justice of the peace accompanied the district attorney to the Saenger Theatre, owned by the appellant, in the city of Hat-tiesburg, Mississippi, to observe the motion picture, “The Exorcist,” which was being shown to the public. Thereafter, affidavits were filed, warrants issued, the film seized and the theatre manager and projectionist were arrested. The charges against the manager and the projectionist were subsequently dismissed, but the corporate appellant was tried for publicly exhibiting an obscene, indecent and immoral motion picture in violation of Section 97-29-33, supra.

The appellant argues numerous assignments of error for reversal, but we limit this opinion to the constitutionality of Mississippi Code . Annotated section 97-29-33 (1972) which provides:

It shall be unlawful for any person, firm or corporation, owning or operating any moving picture show or moving picture establishment, in this state, to show, or exhibit to public view on a screen or otherwise, any obscene, indecent, or im moral picture, drawing or print, provided such picture, drawing or print is not being exhibited under the auspices of health authorities for educational purposes. Any person, firm or corporation owning or operating any moving picture show or moving picture establishment in this state, violating this section shall be guilty of a misdemeanor and on conviction shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars, or by imprisonment for not more than sixty days or both. (Emphasis added.)

The appellant argues that the statute is unconstitutionally overbroad, lacks specificity, and does not comply with the standards prescribed by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), regarding the First Amendment to the United States Constitution’s prohibition of the enactment of laws abridging freedom of speech.

In the beginning we reiterate that it is axiomatic that the United States Supreme Court is the final arbiter of the constitution and that its constructions are the final authority upon the meaning of the terms of that great document. Moreover, its decisions, which apply to the states through the Fourteenth Amendment, permit little leeway by this or other state judiciaries to recede from its pronouncements of the meaning of our federal constitution. It necessarily follows that if either the statutory or case law of the state conflicts with the construction of the federal constitution as placed upon it by the United States Supreme Court, the state law must yield. The issues before us must be decided from this context.

We are of the opinion that Mississippi Code Annotated section 97-29-33 (1972) is overbroad since it prohibits freedom of speech in areas beyond the permissible limits of Miller, supra. There the United States Supreme Court said:

. . . State statutes designed to regulate obscene material must be carefully limited. ... As a result, we now confine the permissible scope of such regulations to works which [would] depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. [The stated] offense must also be limited to works which, taken as a whole, appeal to prurient interest in sex, which portray sexual conduct in a patently offensive way, and which taken as a whole, do not have serious literary, artistic, political, or scientific value. 413 U.S. at 23-24, 93 S. Ct. at 2614-2615, 37 L.Ed.2d at 430-431.

The standard for the trier of fact was stated:

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. . . . 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.

The area of regulation remaining to the states was expressed through the following examples:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. . . .
413 U. S. at 25-26, 93 S.Ct. at 2615-2616, 37 L.Ed.2d at 431-432.

We think it self-evident that using a statutory definition of “obscene, indecent or immoral” in viewing moving pictures treads upon the freedom of speech requirements of Miller and as such is an unconstitutional trespass upon the First Amendment to the United States Constitution. Of interest, see 45 Miss.L.J. 435 — Miller v. California: A Mandate for New Obscenity Legislation (1974).

The state does not seriously argue the constitutionality of Section 97-29-33 by its literal terms, but urges this Court to “authoritatively construe” it to constitutional proportions by reading into it the specificity and limitations of Miller. We are not persuaded for several reasons. The adoption of authoritative construction could only be prospective as to this appellant, for surely a retrospective application of Miller would impose upon this appellant an ex post facto rule of law, for how can it be said that the defendant’s actions in showing the movie were criminal when the alleged crime was committed a year and a half before the statute was revitalized by authoritative construction. Ballew v. State, 292 Ala. 460, 296 So.2d 206 (1974), the concurring opinion of Chief Justice Heflin; Papp v. State, 281 So.2d 600 (Fla.App.1973); and Stroud v. State, 300 N.E.2d 100 (Ind.1973).

Moreover, this Court has never undertaken the suggested approach of the state, though it must be conceded that such authoritative construction is permitted by Miller. In Boydstun v. State, 249 So.2d 411 (Miss.1971), we held this Court would not define the offense of criminal libel or make common law even though the elements of that common law offense were uncertain due to the passage of time and varied constructions by the United States Supreme Court during the interval. We determined that the enactment of criminal offenses was best left to the legislature. See also Reserve Life Ins. Co. v. Coke, 254 Miss. 936, 183 So.2d 490 (1966), and Monaghan, State Tax Collector v. Reliance Mfg. Co., 236 Miss. 462, 111 So.2d 225 (1959).

We think it is clearly demonstrated by these decisions that our constitution intended the legislative function to be left to that body, and particularly the enactment of criminal sanctions for transgressions thought to be offensive to the citizenry of this state. Without doubt, the legislature is better suited for that purpose than is this Court by the use of judical engraftment to meet constitutional requirements. We observe also that the legislature might want to give consideration to Article 3, Section 13, of the Mississippi Constitution (1890) relating to the freedom of speech in this state. It is there provided that “the freedom of speech and of the press shall be held sacred; . . .” when considering amendatory legislation. We are of the opinion, without deciding, that Article 3, Section 13, supra, by modern-day standards, appears to be more protective of the individual’s .right to freedom of speech than does the First Amendment since our constitution makes it worthy of religious veneration. We therefore reject the revitalization of Section 97-29-33 by authoritative construction.

We are aware that attempts to regulate obscene matters have resulted in controversy unequaled in other areas of law and we are hesitant to enter this thicket where each of us by his background and education can clearly perceive and distinguish between obscenity and nonobscenity, but which due to human frailties, we are unable to reduce to written definition capable of clear understanding by others because their eyes are beclouded by other environments and education. At least Miller has reduced the formulation of obscenity statutes from a national standard of “utterly without social value” to the standard of “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value,” and has placed the composition thereof to the discretion of the community, a step toward moderation heretofore nonexistent.

Mississippi Code Annotated section 97-29-33 (1972), was enacted in 1920, has not been changed, and presently contravenes the Miller definition of the First Amendment and as such it is unconstitutional.

This case was considered before the conference of judges en banc.

Reversed and rendered.

RODGERS, P. J., and INZER, SMITH and BROOM, JJ., concur.

GILLESPIE, C. J., and SUGG, ROBERTSON and WALKER, JJ., dissent.

SMITH, Justice

(specially concurring):

I concur in the conclusion reached by the majority in this case.

Bound, as we are, by the pronouncements of the United States Supreme Court, the Mississippi obscenity statute, in its present form, fails to meet “standards” set forth by that Court in Miller v. California, cited in the opinion.

In its opinion in Miller, the United States Supreme Court seems to invite state courts to amend state obscenity statutes by judicial legislation so that such statutes will comply with the requirements imposed in Miller. I conceive the constitutional tripartite separation of powers to be a fundamental and salutary concept of our, form of government. The judiciary should not usurp or encroach upon powers constitutionally vested exclusively in the legislative branch. In my own personal view of what is obscene and what is not, and I am certain in the personal view of each of the other justices comprising the majority in this case, the matter discussed in the dissents unquestionably would appear to be obscene. But unlike a gun (used as an example in a dissent) obscenity, in one respect, is like beauty, and lies in the eye of the beholder. This appears to have been one reason for the difficulty experienced in drafting a criminal statute which meets standards set up by the United States Supreme Court.

I am convinced that the Mississippi Legislature now in session, will, (and in my humble opinion should) amend the present obscenity statute in order to comply with the latest utterances- of the United States Supreme Court on the subject so that its praiseworthy object may be accomplished.

The result of judicial legislation during the past several decades fails to convince that such radical departure by courts from their traditional and constitutional role and the encroachment upon the legislative prerogative by the judiciary have been other than unwise.

BROOM, J., joins in this opinion.

BROOM, Justice

(concurring):

I am in complete accord with the decision reached by the majority in this case.

The United States Supreme Court has, as a practical matter, invited this Court to authoritatively construe a criminal statute enacted by the legislature. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L. Ed.2d 419, reh. den. 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). To authoritatively construe this statute as suggested by the state, in my judgment, would amount to an adventure into judicial legislation which this Court has heretofore consistently rejected as an improper course to follow. The United States Supreme Court (as previously constituted) has in several instances legislated by judicial fiat, but in so doing that great and powerful body has brought turmoil and confusion upon the jurisprudence of the nation. Even if we were to authoritatively construe the words “obscene, indecent, or immoral” in the present case so as to make the statute constitutional, we could not do so retroactively because in effect such a decision would create an ex post facto law. Thus it is clear that no action of this Court can now prevent showing of the film under consideration.

Recently this Court, as to procedural matters, has asserted its rule making powers. Newell v. State, 308 So.2d 71 (Miss.1975). In so doing, we based our decision upon the firm constitutional ground that no department of government, whether legislative, judicial, or executive, should encroach upon the powers of another department. As the record before us shows, there is a wide divergence of opinion among intelligent people as to what is or is not “obscene, indecent or immoral.” My considered judgment is that the legislature, now in session, is the appropriate body to set standards of conduct which are to constitute criminal offenses. Such legislative action could reasonably be taken during the current session and protect the public from any lengthy void in this regard. This Court has rightly decided that it will not engage itself in the business of enacting criminal sanctions by judicial fiat.

GILLESPIE, Chief Justice

(dissenting):

With deference, I dissent.

The gist of the holding of the majority is that Mississippi Code Annotated section 97-29-33 (1972) is overbroad, or, to state it differently, that the statute is not sufficiently definite to meet constitutional standards. The statute condemns the showing of films that are “obscene, indecent or immoral.”

The Supreme Court of the United States has wrestled with obscenity statutes in a vain attempt to find a satisfactory definition of the term. Prior to Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L. Ed.2d 419 (1973), the Court held that to prove obscenity it must be affirmatively established that the material is “utterly without redeeming social value.” It was noted in Miller that the late Mr. Justice Harlan questioned whether the “utterly without redeeming social value” test had any meaning at all, and the Court, in Miller, further stated:

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States’ police power. See, e. g., Redrup v. New York, 386 U.S. [767] at 770-771, 87 S.Ct. [1414], at 1415-1416, 18 L.Ed.2d 515. We have seen “a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.” 413 U.S. at 22, 93 S.Ct. at 2614, 37 L.Ed.2d at 429.

In Miller, the Court made an effort to bring some order to the chaotic condition of the law as it applied to obscenity statutes. In Pierce v. Alabama, 292 Ala. 473, 296 So.2d 218 (1974), cert. denied, 419 U.S. 1130, 95 S.Ct. 816, 42 L.Ed.2d 830 (1974), the Alabama Court correctly stated that the United States Supreme Court in Miller “invites judicial construction as a method of supplying the required specificity if such is absent from the statute.” The Alabama statute is no more specific than the Mississippi statute, even when the amendment attempting to define the word “obscene” is considered. The principal holdings in Pierce are stated at the beginning of the opinion as follows:

1. The tests set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L. Ed.2d 419 (1973) are engrafted by judicial construction to the 1961 Alabama obscenity statute.
2. With the Miller engraftments the 1961 Alabama obscenity statute is constitutional as applied in the context of the instant case.
3. Contemporary community standards referred to in Miller are statewide standards in Alabama. 296 So.2d at 219.

In Miller, supra, the Court defined the permissible scope of obscenity regulation in the following language:

State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. [676], at 682-685, 88 S.Ct. [1298], at 1302-1305, 20 L.Ed.2d 225. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. [229], at 230, 92 S.Ct. [2245], at 2246, 33 L.Ed.2d 312, quoting Roth v. United States, supra, 354 U.S. [476], at 489, 77 S.Ct. [1304], at 1311, 1 L.Ed.2d 1498; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts, 383 U.S. [413], at 419, 86 S.Ct. [975], at 977, 16 L.Ed.2d 1; that concept has never commanded the adherence of more than three Justices at one time. See supra, [413 U.S.], [at 21], [93 S.Ct.] at 2613, 37 L.Ed.2d at 429. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, [408 U.S.], at 232, 92 S.Ct. at 2247, 33 L.Ed.2d 312; Memoiris v. Massachusetts, supra, 383 U.S., at 459-460, 86 S.Ct., at 998, 16 L.Ed.2d 1 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. [184], at 204, 84 S.Ct. [1676], at 1686, 12 L.Ed.2d 793 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285, 84 S.Ct. 710, 11 L.Ed.2d 686, 728, 95 A.L.R.2d 1412 (1964); Roth v. United, States, supra, 354 U.S., at 497-498, [77 S.Ct, at 1315-1316], 1 L.Ed.2d 1498 (Harlan, J., concurring and dissenting).
We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. 413 U.S. at 23-26, 93 S.Ct. at 2614-2616, 37 L.Ed. at 430-432.

In Nelson v. City of Natchez, 197 Miss. 26, 19 So.2d 747 (1944), the Court construed a municipal penal ordinance, and the question was what constituted a “public place.” The Court, in holding that a restaurant was a public place, stated:

Certainly, the general rule is that penal statutes must be strictly construed. At the same time courts are required to take a reasonable and common-sense view of the evil at which a statute is directed and the protection which it is designed to afford; and when these are within the letter of the statute, the enactment is to be construed in accordance with its purpose, although its letter would admit a narrower interpretation. 197 Miss, at 31, 19 So.2d at 747.

In United States v. Hood, 343 U.S. 148, 72 S.Ct. 568, 96 L.Ed. 846 (1951), the question at issue was the vagueness of a criminal statute. In upholding the statute, the Supreme Court stated:

It is pressed upon us that criminal statutes are to be strictly construed. But this does not mean that such legislation “must be construed by some artificial and conventional rule.” United States v. Union Supply Co. 215 U.S. 50, 55, 30 S. Ct. 15, 16, 54 L.Ed. 87, [88]. We should not read such laws so as to put in what is not readily found there. But equally we should not read out what as a matter of ordinary English speech is in.
The Act penalized corruption. It is no less corrupt to sell an office one may never be able to deliver than to sell one he can. Dealing in futures also discredits the processes of government. There is no indication that this statute punishes delivery of the fruit of the forbidden transaction — it forbids the sale. . The sale is what is here alleged. Whether the corrupt transaction would or could ever be performed is immaterial. We find no basis for allowing a breach of warranty to be a defense to corruption.
Our construction of the statute does not offend the requirement of definiteness. The picture of the unsuspecting influence merchant, steering a careful course between violation of the statute on the one hand and obtaining money by false pretenses on the other by confining himself to the sale of non-existent but plausible offices, entrapped by the dubieties of this statute, is not one to commend itself to reason.
343 U.S. at 151, 72 S.Ct. at 570, 96 L.Ed. at 849.

In my opinion, this Court has the constitutional power to construe the statute in question as required by Miller and uphold its validity. I also believe it to be the duty of the Court to do so. Then the Court could examine the evidence to determine whether the film violated the statute as construed according to the Miller standards. This would, in my opinion, be consistent with both the decisions of this Court and the Supreme Court of the United States. Indeed, as noted in Pierce v. Alabama, supra, Miller invites construction of obscenity statutes so as to conform to Miller standards.

I do not think the present case is necessarily controlled by Boydstun v. State, 249 So.2d 411 (Miss.1971). That case involved the statute making it a crime to publish “any libel.”

The Court has the duty to construe the meaning of statutes, and has done so in many cases. It has construed what is meant by “accessory” in Mississippi Code Annotated section 97-1-3 (1972); what constitutes a “design and endeavor” to commit a crime, section 97-1-7; what is a “deadly weapon,” section 97-3-7; what is a “deliberate design” in a homicide statute, section 97-3-19; what constitutes “culpable negligence” in a manslaughter statute, section 97-3-47; and what constitutes “desertion” or “wilful neglect” of children, section 97-5-3.

For the reasons stated and upon the authority cited, I am of the opinion that the statute should be upheld by construing it according to Miller standards.

ROBERTSON, SUGG and WALKER, JJ., join in this dissent.

SUGG, Justice

(dissenting):

In this case we do not reach the question of whether “The Exorcist” is obscene, but the majority reverses and renders on the ground that Mississippi Code Annotated section 97-29-33 (1972) is unconstitutional. I have neither read “The Exorcist” nor seen the movie, but if, as indicated in the briefs, the book and the movie depict masturbation by a young girl using a crucifix, there can be no doubt that they are obscene. However, the majority opinion declares that Mississippi Code Annotated section 97-29-33 (1972) is unconstitutional because it “contravenes the Miller definition of the First Amendment.” Appellant argues that the statute is unconstitutional because it is overbroad and lacks specificity. This is simply another way of stating that it is “void for vagueness.”

The United States Supreme Court addressed this question in United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975) and held that 18 U.S.C. § 1715, which proscribes mailing pistols, revolvers and “other fire arms capable of being concealed on the person” is not unconstitutional under the void for vagueness doctrine. The Court stated:

But the challenged language of 18 U. S.C. § 1715 is quite different from that of the statute involved in Cohen [United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516], It intelligibly forbids a definite course of conduct: the mailing of concealable firearms. While doubts as to the applicability of the language in marginal fact situations may be conceived, we think that the statute gave respondent adequate warning that her mailing of a sawed-off shotgun of some 22 inches in length was a criminal offense. Even as to more doubtful cases than that of respondent, we have said that "the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.” Nash v. United States, 229 U. S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232 (1913).
The Court of Appeals questioned whether the “person” referred to in the statute to measure capability of concealment was to be “the person mailing the firearm, the person receiving the fire-, arm, or, perhaps, an average person, male or female, wearing whatever garb might be reasonably appropriate, wherever the place and whatever the season?” [9 Cir.] 501 F.2d [1136], at 1137. But we think it fair to attribute to Congress the commonsense meaning that such a person would be an average person garbed in a manner to aid, rather than hinder, concealment of the weapons. Such straining to inject doubt as to the meaning of words where no doubt would be felt by the normal reader is not required by the “void for vagueness” doctrine, and we will not indulge in it.
The Court of Appeals also observed that “to require Congress to delimit the size of the firearms (other than pistols and revolvers) it intends to declare un-mailable is certainly to impose no insurmountable burdens upon it . . . .” Ibid. Had Congress chosen to delimit the size of the firearms intended to be declared unmailable, it would have written a different statute, and in some respects a narrower one than it actually wrote. To the extent that it was intended to proscribe the mailing of all weapons capable of being concealed on the person, a statute so limited would have been less inclusive than the one Congress actually wrote.
But the more important disagreement we have with this observation of the Court of Appeals is that it seriously misconceives the “void for vagueness” doctrine. The fact that Congress might, without difficulty, have chosen “clearer and more precise language” equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague. United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947). (423 U.S. at 93, 96 S.Ct. at 320) (Emphasis supplied).

The statute in question intelligibly forbids showing any obscene picture, drawing or print unless exhibited under the auspices of health authorities for educational purposes. Miller simply limits the definition of the word obscene to the standards set forth therein, and reaffirmed the principle that obscenity is not protected by the First Amendment. The word obscene has a definite meaning and we should not strain to inject doubt as to its meaning where no doubt would be felt by a normal person.

Although the legislature might have chosen clearer and more precise language, this fact does not make the statute unconstitutionally vague. We should not invoke the void for vagueness doctrine and loose upon the citizens of this state a flood of pornographic movies whose only purpose is to undermine the moral fiber of our citizens.

GILLESPIE, C. J., and ROBERTSON, J., join in this dissent.

      . See Kingsley Int. Pic, Corp. v. Regents of N.Y.U., 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed. 1512 (1959); Holmby Productions, Inc. v. Vaughn, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770 (1955) ; and Anderson v. City of Hattiesburg, 131 Miss. 216, 94 So. 163 (1922). Other states with statutes similar to ours, predating Miller and not amended in accord with it, have encountered the same difficulty: Louisiana, Tennessee, Georgia, Iowa, North Dakota, Indiana and Massachusetts.

      . The state was granted, over objection of the defendant, an instruction that permitted conviction for exhibiting “an obscene, indecent or immoral picture.”


author: MERRILL, Justice.

text:
    BIRMINGHAM TRUST NATIONAL BANK, a corporation v. MIDFIELD PARK, INC.
    SC 1069.
    Supreme Court of Alabama.
    Jan. 2, 1976.
    Romaine S. Scott, Jr., Birmingham, for appellant.
    Stone, Patton & Kierce, Bessemer, for appellee.
   MERRILL, Justice.

This appeal is from a judgment in a declaratory judgment proceeding wherein Midfield Park, Inc. (hereinafter Midfield) sought a construction of an agreement between it and Birmingham Trust National Bank (hereinafter BTNB).

The trial court’s construction of the agreement resulted in its issuance of an injunction forbidding BTNB from maintaining a curb along the eastern boundary of its property, and BTNB appealed.

The only issue before this court is whether the trial court correctly construed the agreement. This agreement, dated November 9, 1969, was delivered by Midfield to BTNB simultaneously with a deed of a parcel of land to BTNB. The deed described land consisting of 100 feet square located in the Midfield Shopping Center, Midfield, Alabama, upon which appellant was to construct a branch bank. The agreement, drawn at the suggestion of BTNB, governed the use of certain aspects of the property. We are concerned here specifically with the aspects of ingress and egress. The agreement, in pertinent part, provides as follows:

“(1) Upon the completion of the improvements on Parcel B, [BTNB property] and for and during the period of years thereafter as said Parcel A [Midfield property] shall be used for shopping center purposes and said Parcel B shall be used for banking purposes, the parties hereto give and grant to the other, and to their respective successors, assigns, lessees, employees, invitees and customers, the right of ingress to and egress from all public roads over and across the respective portions of Parcels] A and B which are set aside for ingress and egress generally, it being the intention of the parties that said parcels, which are contiguous, shall not be fenced or otherwise used in such manner as will interfere with the free flow of automobile traffic to and from their respective parcels and the surrounding roads and shopping center area. * * * ” The trial judge found as follows:
“A drive-in window was incorporated in the bank building when it was originally constructed. In March or April, 1969, an additional drive-in facility was constructed on the bank’s property, at which time a curb was constructed along the easterly side of the bank’s land which was contiguous to the land' of the plaintiff [Midfield], Prior to the erection of the curb, a southerly portion of Parcel B was used for ingress and egress by plaintiff and its employees, invitees and customers to and from the public roads, and to said Parcels A and B, which use thereof terminated upon the erection of such curb.”

Based on that finding of fact, the trial court concluded that the action of BTNB was in contravention of the pertinent provisions of the agreement and the court enjoined BTNB from maintaining the curb along the eastern boundary of its property. We affirm.

It is the duty of the court to “ ‘analyze and determine the meaning of a contract * * * when its terms are clear and certain '**.’ ” Metzger Brothers, Inc. v. Friedman, 288 Ala. 386, 261 So.2d 398, citing Air Conditioning Engineers v. Small, 259 Ala. 171, 65 So.2d 698. This court stated in Franklin Life Ins. Co. v. Brantley, 231 Ala. 554, 165 So. 834, the following:

“ * * * when a contract is clearly stated and expresses the intent of the parties, it will be so applied.” (Citations omitted)

A reading of the agreement printed supra would indicate to the reader that the meaning is clear and concise. We find from the record in the lower court that each party agreed and intended to be so bound for their mutual benefit. BTNB noted in its counterclaim filed in circuit court that it wished to protect the rights of ingress and egress from the bank area to the shopping center. It feared that Midfield would isolate the bank from the convenient flow of traffic by fencing it out of the shopping center, or other like measure. Midfield consented to the agreement because it derived benefits also. As stated in BTNB’s counterclaim “ * * * the respective parties could utilize their respective properties in the most effective and efficient manner * * * ” if this access were available to each party. We can only conclude, as did the lower court, that the plain meaning of the agreement and the intent of the parties warrant the injunction against appellant.

Should there be any doubt as to the plain meaning of the agreement, this court will go further to apply an old rule of contract law, long recognized in this jurisdiction. It was stated by this court most effectively in Alabama-Tennessee Natural Gas Co. v. City of Huntsville, 275 Ala. 184, 153 So.2d 619:

“ * * * courts will construe doubtful terms in a contract more strongly against the party who framed or prepared them, and when the instrument is capable of two constructions, it should receive that which is most unfavorable to the maker. King v. Capitol Amusement Co., 222 Ala. 115, 130 So. 799; Minge v. Green, 176 Ala. 343, 58 So. 381; Livingston v. Arrington, 28 Ala. 424.”

It is clear from the record that BTNB prepared the agreement in question and the ingress and egress provision was included in it at BTNB’s insistence. Therefore, assuming any part of the agreement pertinent to this controversy had been found ambiguous or of doubtful meaning, that meaning would have been construed more strongly against BTNB, authorities supra.

Affirmed.

HEFLIN, C. J„ and MADDOX, JONES and SHORES, JJ., concur.


author: MADDOX, Justice.

text:
    In re Steven D. PUGH v. Jack CALLOWAY d/b/a Jack Calloway Realty Co. Ex parte Jack CALLOWAY and Vanway Company, Inc.
    SC 1301.
    Supreme Court of Alabama.
    Jan. 2, 1976.
    Hardin, Stuart, Moncus & Noojin, Thomas S. Lowery, Birmingham, for petitioner.
    Corretti, Newsom & Rogers, Birmingham, for respondent.
   MADDOX, Justice.

Jack Calloway, d/b/a Jack Calloway Realty Co., Inc., petitioned this Court to grant a Writ of Mandamus to compel the Honorable William C. Barber, as judge of the Circuit Court of Jefferson County, Alabama, to vacate an order entered by him on the second day of May, 1975, striking a jury demand made by Calloway on a counter-claim filed by Calloway in a pending court action.

On April 30, 1974, Steven D. Pugh filed an action against Calloway in which he sought an injunction against Calloway from going upon a certain piece of land adjacent to a building Pugh had rented, and later purchased. The land involved is a small area approximately 15' x 30' at the rear of Pugh’s building which Pugh contended served the building in numerous ways.

Pugh contended in his complaint that he and his predecessors in title were then and had been in actual physical possession of the real property described in the complaint and that by virtue of adverse possession, and/or prescription, he was the owner of the property.

On the same date that the original complaint was filed, Judge Barber entered a temporary restraining order enjoining the petitioners from going upon the land, or causing any agent or other person from going upon the land. Calloway entered an initial appearance by filing an answer to the complaint and a counter-claim. The counter-claim contains two counts. Count one is an action for statutory ejectment; count two is a trespass action seeking money damages and injunctive relief. At the time the petitioners filed their answer and counter-claim, a jury trial was demanded. On April 30, 1975, Pugh filed a motion to strike the petitioner’s jury demand. Judge Barber granted the motion to strike the jury demand and entered the following order:

“ORDER

“This cause came on to be heard upon 'Motion To Strike Jury Demand’ as filed on May 2, 1975 Plaintiff-Cross-Defendant.
“The Court heard statements and arguments of counsel and was furnished with legal authorities for the position taken by them in furtherance of an opposition to the said Motion. The Court finds that the basic issue in this cause is that of the ownership of the subject real property. Plaintiff claims title to the subject property by virtue of a prescriptive right established by user. Defendants, in their counter-claim, claim ownership of the property and plead in ejectment and^seek damages for trespass.
“Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
“ONE: A trial of the right of the ownership of the subject property will clarify and make solid the rights of the respective parties to proceed further with their respective claims. For the determination of this basic question of law, that is the question of ownership, the Court does not desire a jury and the Defendants-Counter-Claimants are not entitled, under the law, to a jury as to this question. Therefore, the Court will proceed to a determination, without a jury, of the question of ownership and right to possession of the subject property. The Court reserves the jury question as to the other features presented in the pleadings.
“DONE and ORDERED this 2nd day of May, 1975.
“/S/ W. C. Barber_
CIRCUIT JUDGE IN EQUITY SITTING”

Petitioners then filed for mandamus in this Court. This Court ordered Judge Barber to show cause why he should not vacate his order striking the jury demand. Judge Barber argues that the petitioners were not entitled to a jury trial because :

1. In equity, a party is not entitled, as of right, to a jury to decide the issues of fact unless it is so provided by statute or constitution;

2. There is no right to a jury trial in an equity suit involving a subject matter of adverse possession;

3. Where a plaintiff’s claim is equitable in nature, there is no right to a jury trial.

While Judge Barber’s propositions of law are accurate statements, we determine that they are inapplicable to this case. As the trial judge correctly pointed out in his order, the pivotal question in this case is one of ownership of the disputed parcel. This cause has some similarity to the case of Kelley v. Mashburn, 286 Ala. 7, 236 So.2d 326 (1970).

There this Court said:

“[1] Ejectment is a favored action for the trial of title to land. McCormick v. McCormick, 221 Ala. 606, 130 So. 226.
“[2] Ejectment was known to the common law, Betz v. Mullin, 62 Ala. 365, and it seems implicit that the right to trial by jury is preserved in causes known to the common law in Section 11, Constitution of Alabama 1901. City of Mobile v. Gulf Development Co., 277 Ala. 431, 171 So.2d 247.
“[3] Equity will not take jurisdiction as a substitute for an action of ejectment. While there is no want of power in a court of equity to determine title to lands, it must decline jurisdiction where the remedy at law is complete and adequate, or where its jurisdiction is invoked as a substitute for an action of ejectment. Perry v. Warnock, 246 Ala. 470, 20 So.2d 867; Miller v. Gaston, 212 Ala. 519, 103 So. 541; Hillens v. Brinsfield, 108 Ala. 605, 18 So. 604.”

Judge Barber’s order striking the jury demand must be vacated.

Writ granted.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Ralph LOVELESS v. Charles GRADDICK et al., etc.
    SC 1307.
    Supreme Court of Alabama.
    Dec. 4, 1975.

      Cunningham, Bounds & Byrd and John T. Crowder, Jr., Mobile, for appellant.
    Wilkins & Druhan and Michael A. Wer-muth, Mobile, for appellees.
   BLOODWORTH, Justice.

This is an appeal from a summary judgment granted the defendants in an action of libel.

Plaintiff Loveless and defendant Grad-dick were both candidates for the office of District Attorney of Mobile County in the general election held November 5, 1974. On October 22, 1974, plaintiff sued defendants Graddick, M. Rout Hudson and certain fictitious persons for libel claiming $100,000 damages. The complaint charged that defendants falsely and maliciously published, or caused to be published, an advertisement in THE MOBILE PRESS REGISTER on Sunday, October 13, 1974, of and concerning the plaintiff, and with intent to defame plaintiff, the following part of said ad being in large, conspicuous print:

“RALPH LOVELESS CANDIDATE FOR DISTRICT ATTORNEY FACES FRAUD CHARGES!”

“The voters of Mobile County should insist that Loveless withdraw from the race.”
“Pd. Pol. Adv. by M. Rout Hudson, Mobile, Ala.”

A copy of the entire article is attached to the complaint. A copy hereinafter appears.

Plaintiff alleges that the article by innuendo stated plaintiff was facing criminal prosecution for fraud, which statement was and is false. Plaintiff further avers “That the natural and probable implication from the article in the minds of the average lay reader was that the Plaintiff was presently being prosecuted for criminal fraud which was and is false.” Then follow averments of damage to reputation and standing in the community, etc. The advertisement is as follows:

A motion for leave to depose defendant Graddick before the election was denied. [Graddick’s deposition was ultimately taken January 21, 1975.]' Graddick’s motion to dismiss the complaint was likewise denied. After several requests for admissions by defendants and answers thereto by plaintiff, defendants filed answer: denying the article is libelous per se or per quod; pleading truth as a defense; pleading privilege; and, pleading the absence of malice within the ambit of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964). The defendants moved for summary judgment. A response to the motion for summary judgment was filed by plaintiff.

On April 11, 1975, motion for summary judgment was granted and the complaint dismissed with prejudice. Hence, this appeal.

The motion for summary judgment is supported by pleadings and exhibits, requests for admissions and answers thereto, deposition of defendant Graddick, an affidavit by Graddick and an affidavit by plaintiff Loveless.

From these documents it appears that defendant Graddick: does not recall who requested information regarding the suit from the Chattanooga, Tennessee, Chancery Court; denies he was concerned that the article was libelous but admits that he consulted with five lawyers before running it; states he had no knowledge of any pending criminal charges of fraud against plaintiff; states he doesn’t know if the charges are true or not — all he knows is that the charges are presently pending; states he left it to the voters to decide on November 5th (the election date) whether they thought plaintiff should withdraw from the race by voting for him (Grad-dick) ; denies that he intended to imply that plaintiff had done something wrong; states it did not occur to him that lay people would read the headlines and get the idea that plaintiff was facing criminal fraud charges; denies intending to hurt plaintiff by publishing the article; states he published it “to inform the people of Mobile County of the man’s situation in Tennessee, going toward, again, his integrity” ; states he had no knowledge that any information contained in the ad was false; states he published the ad in good faith solely to inform the electorate of the background of one of. its candidates.

It further appears from the admissions of fact: that the paragraph in the complaint “7 Alabamians are Defendants in Civil Suit” and photocopy of such article is a genuine photocopy of an article appearing in THE MOBILE PRESS-REGISTER on March 23, 1972; that the plaintiff was a party cross-defendant in the suit in Chancery Court in Chattanooga, Tennessee, and, that the “Amendment to Cross-claim,” in that suit, alleges, inter alia, that plaintiff and certain others had perpetrated a fraud upon the cross-plaintiff in the suit.

Plaintiff-Loveless contends on this appeal that the trial judge erred in granting summary judgment because:

First, there is a genuine issue as to a material fact — namely, the interpretation to be placed on the “headline” and the entire article by the average lay reader as to whether it imports a criminal charge of fraud;

Second, there is a genuine issue as to a material fact — whether the article is true in “all material respects since the headline, and the article as a whole, may be said to impute” that Loveless was facing criminal fraud charges;

Third, the “privilege” of New York Times v. Sullivan would be inapplicable if plaintiff-Loveless had been permitted to show “actual malice” to the jury and granting summary judgment is inappropriate to dispose of these issues.

Defendants-Graddick and Hudson answer these contentions, thusly:

First, “trpth” is a complete defense. All the documents reveal that all the material which went into the ad was, in fact, true —nothing implied Loveless was facing criminal charges — Loveless himself admitted being a defendant in the pending lawsuit wherein he, and others, were charged with fraud — thus, there was no genuine issue as to any material fact;

Second, the ad showed on its face that the charges were “civil” and Loveless cannot enlarge on the plain meaning of the words, by innuendo or implication, beyond their natural and obvious import;

Third, there is the issue of the constitutional “privilege” under New York Times v. Sullivan. Loveless and Graddick were candidates for District Attorney, and as such, fall within the ambit of the “Times Rule” that public officials cannot recover for libel unless proof is offered that the publication was made with “actual malice” —“that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” It is contended by defendants — Graddick and Hudson that all the evidence offered on summary judgment is uncontradicted and is to the effect that defendants neither knew that any of the matter published was false nor did they recklessly disregard any matter of fact coming to their attention concerning the material used in the ad. Defendants conclude that there is not a scintilla of evidence to warrant the case going to a jury.

Having set out the contentions of the parties, we move to consider the fundamental issue presented to us by this appeal as to whether there is a genuine issue as to any material fact under Rule 56, A.R.C.P., Summary Judgment. Put differently, was summary judgment appropriate?

In order to determine this issue we must first consider the following threshold questions.

First, may the ad be said to “impute” criminal fraud, and, if so, is there then presented a genuine issue on any material fact?

Second, assuming, arguendo, that the ad does impute criminal fraud, nevertheless, does this case fall within the “privilege” of New York Times v. Sullivan and, absent an allegation or showing of actual malice, is there then presented a genuine issue as to any material fact ?

It is appropriate that we set out those basic principles which govern us in our review of the granting of summary judgment.

The party moving for summary judgment must clearly show, i.e., has the burden to show, that the other party could not recover “under any discernible circumstances.” Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975); see also, Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975).

A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the movant is entitled to judgment as a matter of law. Birmingham Television Corporation v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974).

The moving party has “the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party.” Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

Likewise, we consider the “Scintilla Rule” in connection with summary judgment. We held in Folmar v. Montgomery Fair Company, Inc., supra, that if there is a scintilla of evidence produced in plaintiff’s favor on the issue of defendant’s negligence, then summary judgment will not lie. As the majority of this Court pointed out therein, the plaintiff might escape having summary judgment rendered against him, yet still suffer the ignomy of defeat by way of directed verdict.

To return now to the question first posed as to whether summary judgment was appropriate, we answer in the negative. We are convinced that there are two genuine issues of material fact: first, whether the ad may be said to charge criminal fraud; and, second, whether, assuming the applicability of the Times Rule, there is a sufficient showing of “actual malice.”

It seems to be the general rule that the test to be applied in determining the defamatory nature of an imputation is that meaning which “would be ascribed to the language by a reader or listener of ordinary or average intelligence, or by a ‘common mind’.” 50 Am.Jur.2d Libel and Slander § 138. Thus, in construing newspaper ads it “must be construed in the sense which readers of common and reasonable understanding would ascribe to it.” 50 Am.Jur. Libel and Slander, supra.

Other authorities state, viz:

“Words should be construed according to their plain and obvious meaning. The construction a court should adopt is to be derived from the expressions used, as from the whole scope and apparent object of the writer. It is the manner in which they will be most probably understood. Words are to be understood in their plain and popular sense, in court as elsewhere. Words are to be construed as understood by mankind in general, in their ordinary meaning. The language of the alleged libel is to be understood as used in the ordinary and most natural sense. [Footnotes omitted.]”

§ 159 The Law of Libel and Slander in the State of New York, Seelman, Vol. 1.

The same general rule has been the rule of our cases. In McGraw v. Thomason, 265 Ala. 635, 93 So.2d 741 (1957), this Court held:

“In determining their actionable character, the printed words are to be taken in their natural meaning, and according to the sense in which they appear to have been used and the idea they are adapted to convey to those who read them. A forced construction is not to be put upon them in order to relieve the defendant from liability, nor are they to be subjected to the critical analysis of a trained legal mind, but must be construed and determined by the natural and probable effect on the mind of the average lay reader.
* Jfi * * 5¡í »

“Fraud” is defined in the dictionary as “an instance or act of trickery or deceit * * * the quality of being deceitful * * * etc.” Webster’s Third New International Dictionary [G. & C. Merriam Company, Publishers.]

Taking the ad as a whole, the headline, the news stories, and the imperative conclusion, and in light of the authorities, this Court, after mature consultation, considers that a genuine issue of a material fact was presented as to whether the words of the ad impute criminal fraud, taking them “in their natural meaning, and according to the sense in which they appear to have been used and the idea they are adapted to convey to those who read them.” McGraw v. Thomason, supra. To say more might jeopardize this cause on remand.

Moving now to the Times question, we have stated that we consider the question of “actual malice” presents a genuine issue as to a material fact.

The Times privilege is, of course, conditional not absolute, and damages may be recovered upon proof of “actual malice.” Actual malice is defined in N.Y. Times v. Sullivan: “with knowledge that it was false or with reckless disregard of whether it was false or not.”

We have carefully reviewed and re-reviewed the documents submitted on summary judgment and must agree with the U.S. District Court in Goldwater v. Ginzburg, D.C., 261 F.Supp. 784 (1966), aff’d 2 Cir., 414 F.2d 324, cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 that:

“The issue of actual malice on the part of defendants seems peculiarly inappropriate for disposition by summary judgment because it concerns ‘motive, intent, and subjective feelings and reactions’.”

Again, as we heretofore expressed ourselves with respect to the first issue— fraud — we would run the risk of jeopardizing this cause on remand to add anything more with respect to this issue.

We will say that there may be circumstances when a summary judgment is entirely appropriate in a libel action; for example, in a case of “absolute privilege.” See Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359 (1964). Or, perhaps, in a case of “qualified privilege” where no proof of malice is shown, see Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 194 N.Y.S.2d 509, 163 N.E.2d 333 (1959).

We look with favor on a statement of the Fifth Circuit Court of Appeals to the effect that “summary judgment should be granted only when it is quite clear what the truth is.” Croley v. Matson Navigation Company, 434 F.2d 73 (1970). It is not quite clear to us what the truth is here, for, as we have heretofore indicated, issues of material fact remain for resolution at trial.

Accordingly, we find the summary judgment to be premature.

Reversed and remanded.

HEFLIN, C. J., and MERRILL, F4ULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

      . Graddick was the successful candidate.