author: ROBERTSON, Justice:

text:
    FIRST NATIONAL BANK OF JACKSON, Mississippi v. Ray S. OLIVE.
    No. 48508.
    Supreme Court of Mississippi.
    March 23, 1976.
    Rehearing Denied May 4, 1976.

      Watkins & Eager, P. N. Harkins, III, Jackson, for appellant.
    James W. Nobles, Jr., Jackson, R. L. Net-terville, Natchez, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice:

The First National Bank of Jackson, Mississippi, has appealed from a judgment for $15,000 damages rendered against it and in favor of Ray S. Olive in the Circuit Court of the First Judicial District of Hinds County. The jury verdict, upon which the judgment was based, was against “the Defendants, First National Bank of Jackson, Mississippi, National Recovery Bureau, Inc., and Jimmy B. Downs,” but only the First National Bank has appealed from this judgment.

The bank assigns as error:

“I. The lower Court erred in allowing the plaintiff to recover punitive damages.
“II. The lower Court erred in allowing the jury to consider the highly speculative and conjectural issue of loss of sales commissions.”

On September 18, 1971, David Gollott of North Biloxi bought a used 1971 Cadillac Deville 4-door hardtop from Thad Ryan Cadillac, Inc., Jackson, Mississippi. Gol-lott executed to Ryan Cadillac a “Retail Installment Contract — Security Agreement and Disclosure Statement” showing a total of $5,780.16 to be paid in 36 equal monthly installments of $160.56 each to Ryan Cadillac in Jackson.

By a standard printed assignment form on the bottom of the retail installment contract, Ryan Cadillac assigned “all title and interest in and to the property therein described and all moneys due and to become due and all rights and remedies under said contract”, to the First National Bank, Jackson, Mississippi.

The retail installment contract contained this provision among others:

“Upon default Buyer agrees upon demand to deliver the vehicle to the Seller, or the Seller may with or without legal process, and with or without previous notice or demand for performance, enter any premises wherein the vehicle may be and take possession of the same, together with anything therein. Thereafter the Seller may, if permitted by law, retain the vehicle as its property or may sell same pursuant to the laws of Mississippi, whereupon the Buyer agrees to pay any deficiency upon demand. While removing the vehicle from point of repossession to Seller’s place of storage Seller may use Buyer’s license plates.” (Emphasis added).

Under the provisions of Mississippi Code Annotated section 63-21-21 (1972), which provides:

“The certificate of title shall be mailed to the first lienholder named in it or, if none, to the owner. If the original certificate of title is delivered to a lien-holder, a nontransferable duplicate certificate of title shall be mailed to the owner to serve as a permit for operation of the motor vehicle,”

the bank held the original certificate of title in its custody.

In June, 1973, Gollott defaulted in his monthly payment to the bank, and the bank, after unsuccessfully trying to contact and collect from Gollott, finally turned the account' over to National Recovery Bureau, Inc., Jimmy B. Downs, President, for handling.

Unbeknown to the Bank, in early June, 1973, Gollott traded his 1971 Cadillac to Buffington Ford Company of Collins, Mississippi. On June 14, 1973, Buffington Ford sold the Gollott Cadillac to Ray S. Olive of Monticello, Mississippi, and executed a bill of sale to Olive on that date, showing a consideration of $4,595.

As required by “The Mississippi Motor Vehicle Title Law” [Section 63 — 21—9(b) ], Buffington Ford furnished Olive with a signed copy of “Application for Certificate of Title”. Section 63-21-9(b). required of a used car dealer:

“After July 1, 1969, any dealer, acting for himself, or another, who sells, trades or otherwise transfers any used vehicle as defined in this chapter, shall furnish to the purchaser or transferee, without charge for either application or certificate of title, an application for title of said vehicle and cause to be forwarded to the motor vehicle comptroller any and all documents required by the motor vehicle comptroller to issue certificate of title to the purchaser or transferee. The purchaser or transferee may then use the duplicate application for title as a permit to operate vehicle as provided in Section 63-21-67, until certificate of title is received. (Emphasis added).
“Any dealer, acting for himself or another who sells, trades or otherwise transfers any vehicle required to be titled under this chapter who does not comply with the provisions of this chapter shall be guilty of a misdemeanor and upon conviction shall be fined in a sum not exceeding five hundred dollars ($500.-00).”

Section 63-21-15(7) also required of a used car dealer:

“Every designated agent within this state shall, no later than the next business day after they are received by him, forward to the comptroller by mail, postage prepaid, the originals of all applications received by him, together with such evidence of title as may have been delivered to him by the applicants." (Emphasis added).

Buffington Ford, for reasons known only to itself, did not comply with Section 63-21-15(7), and did not forward the original application for certificate of title to the Motor Vehicle Comptroller until October 24, 1973.

On June 15, 1973, Olive bought a Mississippi license tag for his Cadillac from the tax collector of Lawrence County at Monticello, Mississippi, and was issued a tax receipt for this tag showing under “Seller name and address” “Buffington Fd. Collins”.

The Bank’s agent, Phil Dickerson, found out about September 7, 1973, that Olive had purchased a tag for the Gollott Cadillac and this information was passed on to Jimmy Downs of the National Recovery Bureau.

Downs tried to contact Ray Olive in Monticello, on two different occasions and, failing to do so, finally called a Mrs. Olive in Natchez, and she told him that Ray Olive was en route to Lewisville, Arkansas. Downs contacted Don Thornton with the Alert Recovery Division in Arkansas on October 5, 1973, and an agent of Alert found the car Saturday morning, October 6th, on the hospital parking lot in Lewis-ville, Arkansas. The car was unlocked and the ignition key was in it, so the Arkansas agent repossessed the car and drove it away. The repossession was promptly reported by Alert Recovery to the local sheriff’s office.

A few moments after it was repossessed, Olive discovered his car gone, and called the sheriff’s office in Lewisville. Olive was advised of the repossession and he immediately called Buffington Ford.

Buffington Ford contacted the First National Bank in Jackson on Monday, October 8, paid the Bank off, flew a salesman to Little Rock, Arkansas, who drove the car back to Jackson and re-delivered the car to Ray Olive on October 14, 1973, at the Hinds County Courthouse in Jackson.

It is undisputed that the Bank, under the terms of the retail installment contract, would have had the right to take peaceable possession of the automobile without previous notice and without legal process from the original buyer, Gollott.

It is also undisputed that Olive was a bona fide purchaser for value without notice from Buffington Ford.' We agree with these comments of the trial court:

“I agree completely that the principal wrongdoer, if there are any wrongdoers at all in the matter, and the principal person or the principal entity responsible for this is Buffington Motor Company. But the Plaintiff chose to try this case and endeavor to make out a case against these defendants.”

As far as the Bank is concerned, the question boils down to this: When the Bank found out in September that Ray Olive of Monticello, Mississippi, had purchased a Mississippi license tag for the Gollott Cadillac, what investigation should the bank have made to determine the true facts ?

Both in its briefs and in oral argument, the Bank has admitted liability for actual damages, but it vigorously denies that it is liable for punitive damages.

The Bank contends that neither Gollott nor Buffington Ford, as required by the Motor Vehicle Title Law, ever notified it of their trade or of the sale to Olive, and that the Bank was making a bona fide effort to collect its debt, with no malice or ill will toward anybody. The Bank says if it were negligent it was guilty of simple negligence only. With this contention we agree.

This is not a case of gross, wanton and reckless negligence that would justify the allowance of punitive damages. The trial court was in error in granting an instruction authorizing the recovery of punitive damages. See Lamar T. Loe Motor Co. v. Harrell, 298 So.2d 273 (Miss.1974); Dorsey Mississippi Sales, Inc. v. Newell, 251 Miss. 77, 168 So.2d 645 (1964); Wood v. Mississippi Power Co., 245 Miss. 103, 146 So.2d 546 (1962).

The Bank complains that the lower court erred “in allowing the issue of Plaintiff’s alleged loss of earnings and commissions to be considered by the jury”.

Olive’s testimony on lost sales commissions was:

“Well, I had given a quote to an outfit over at Hodges, Louisiana on three machines at approximately $75,000. I work for a salary and a commission and an expense account. And the commission on these three machines would have been $3,750.00 had I gotten the deal. But I didn’t have a copy of the quote, I didn’t have anything to go back to them on; and when I finally got all of this stuff back that was in the car and went back over there, they’d bought other machines.”
“Q Well, did you already have the contract, or were you just negotiating?
“A No, it was in the state of negotiation in that they had asked me for a bid and I had given them a bid and had a copy of that bid in my car, and I didn’t remember the exact amount of it.
“Q Could you have made another bid and sent it to them?
“A Pardon ?
“Q Could you have made another bid and sent it to them?
“A. Well, possibly. It takes a good deal of time to make up a bid.
“Q Did you call the people and tell them what your problem was and that you’d get another bid in shortly?
“A I called them, and they said they’d already bought another machine, other machinery.”
“Q And how much decrease in your income resulted from your not being able to call on them [dealers] if you know?
“A Oh, I’d say two or three thousand dollars in addition to that $3750.00.”

This testimony is highly conjectural and speculative and would not justify nor support a verdict for lost sales commissions. In Hudson v. Farrish Gravel Co., Inc., 279 So.2d 630 (Miss.1973), we said:

“As a general rule, damages which are uncertain, contingent or speculative are not recoverable. See many cases collected in 15 Am.Jur. Damages § 20, at 410 (1938). Ordinarily, no recovery can be had where resort must be had to speculation or conjecture for the purpose of determining whether or not the damages resulted from the act of which complaint is made, or some other cause, or where it is impossible to say what of any portion of the damages resulted from the fault of the defendant and what portion from the fault of the plaintiff himself. 15 Am.Jur. Damages § 22, at 413 (1938). See also Chevron Oil Company v. Snellgrove, 253 Miss. 356, 175 So.2d 471 (1965)”. 279 So.2d at 635-36.

Olive claimed in his declaration that he was entitled to $170 damages ($17 a day for 10 days) as the “reasonable rental for a similar vehicle”. His proof was that he actually rented a car from his son-in-law for the 10-day period (that he was without his Cadillac) at $15 a day.

In National Dairy Products Company v. Jumper, 241 Miss. 339, 130 So.2d 922 (1961), this Court said:

“When a commercial vehicle which has been injured may be repaired, if the repairs will substantially restore it to its former condition, the cost of such repairs will ordinarily furnish an element of damages. Anno., 4 A.L.R. 1350, 1352— 1355 (1919); 5A Am.Jur., Automobiles and Highway Traffic, Sec. 1114. If in addition to the physical injury the owner has lost the vehicle’s use for a period of time, as during the process of repair, he is entitled to the value of the use of the property during this period. 4 A.L.R. 1355. The weight of authority is that, except in special circumstances, loss of profits cannot he considered as a measure of such damages. Such an element usually contains considerable speculation and conjecture. 4 A.L.R. 1361; 5A Am.Jur., ibid., Sec. 1116; 25 C.J.S. Damages § 83, p. 602; Anno., 169 A.L.R. 1074 (1947). A more precise and easily defined measure for loss of use of a commercial vehicle is the rental or usable value of the property during the period the owner has been deprived of it. This is the generally recognized criterion. Damages for loss of use should be measured by the cost of hiring another vehicle while the repairs are being made. The rental value of a replacement vehicle may be recovered, even though no other was actually procured during the interval. 5A Am.Jur., ibid., Sec. 1115.
“Where no substitute vehicle can be rented in the market and area reasonably related to complainant’s business and trade area, loss of profits may be recovered where the evidence is of sufficient probative value to adequately and clearly measure such loss of profits. However, an award for loss of profits is erroneous in the absence of a showing that no other vehicle could be rented or that the rental value could not be determined. 25 C.J.S. Damages § 83, pp. 601-602. The cited annotations and texts discuss a multitude of cases following these principles.” 241 Miss, at 343-44, 130 So.2d at 923. (Emphasis added).

Unfortunately the verdict in the case at bar is a general verdict for $15,000. There is no way for this Court to know what part of the jury verdict is for punitive damages; nor is there any way for this Court to know if the jury took into consideration the highly conjectural and speculative testimony on sales commissions, in arriving at the amount of its verdict.

The judgment is reversed and this cause remanded for a new trial on actual damages alone.

REVERSED AND REMANDED.

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

GILLESPIE, C. J, took no part.


source: Caselaw Access Project

license: Public Domain

text:
    L. F. ROGERS, Sr. v. Rufus C. HALL, Individually and as father and next friend of Terry Lynn Hall.
    No. 48633.
    Supreme Court of Mississippi.
    April 20, 1976.
    Rehearing Denied May 11, 1976.
    Aultman, Pope, Aultman, Van Slyke & Tyner, Hattiesburg, for appellant.
    George S. Shaddock, Pascagoula, Sidney A. Barnett, Lucedale, for appellees.
    Before PATTERSON, P. J, and WALKER and BROOM, JJ.
   Appeal from Circuit Court, George County; Darwin M. Maples, Judge.

AFFIRMED.


author: LEE, Justice:

text:
    WESTERN SURETY COMPANY et al. v. STATE of Mississippi, for the Use and Benefit of W. F. SEALS, Sr., d/b/a B & B Motors.
    No. 48585.
    Supreme Court of Mississippi.
    April 6, 1976.
    Rehearing Denied May 4, 1976.

      Page, Mannino & Peresich; Biloxi, for appellants.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice:

This is an appeal by Western Surety Company from the Circuit Court of Jackson County which entered judgment upon a jury verdict in favor of the State of Mississippi for the use and benefit of W. F. Seals, Sr., d/b/a B & B Motors, against Falcon Park Motor Company, Inc., and Western Surety Company in the sum of two thousand five hundred dollars ($2,500.-00). Falcon does not appeal.

According to the allegations of the declaration, on April 25, 1973, Seals purchased a 1971 Chevrolet Impala automobile from Falcon, a designated agent of the Mississippi State Motor Vehicle Comptroller. Falcon had entered into bond in the sum of five thousand dollars ($5,000.00) with the State of Mississippi for the faithful performance of its duties of properly titling motor vehicles. The bond was executed by Western Surety Company. Falcon was acting as such designated agent at the time it sold the automobile to Seals, and it failed to perform its duties as such agent in selling Seals the vehicle, which was not properly titled and which was a stolen vehicle, and in failing to ascertain that the vehicle had good title. As a result of Falcon’s failure to perform its said duties, Seals, who sold the vehicle to a customer, sustained damages.

Appellant admitted that Falcon was a designated agent of the State Motor Vehicle Comptroller and, on April 25, 1973, was acting as agent of the Comptroller in licensing and titling automobiles and for the purposes of the Motor Vehicle Title Law. Appellant further admitted that Falcon entered into bond with it for the faithful performance of its duties of properly titling motor vehicles.

Falcon admitted that Seals purchased the automobile from it, and Falcon made the same admissions as appellant with reference to being and acting as a designated agent.

Appellant contends the trial court committed four errors which require reversal of the case.

I.

The trial court erred in refusing to grant appellant’s motion for a directed verdict, peremptory instruction and new trial.

In support of this point, appellant argues:

(1) There can be no liability under the bond unless Falcon failed to faithfully perform its duties as a designated agent. The evidence is uncontradicted that Falcon took no action as a designated agent with respect to the subject car. Therefore, even though it may have been negligent in failing to discover a defect in the title, this negligence did not occur at a time when it was performing said duties.

(2) Falcon was a dealer holding the automobile for sale and it was exempt by Mississippi Code Annotated § 63-21-11(b) (1972) from performing the duties of a designated agent as required by Mississippi Code Annotated § 63-21-11 and § 63-21-15 (1972) of said law.

(3) A dealer (designated agent) does not apply for a title after a wholesale transaction, but waits until the vehicle has been sold at retail before he applies for a title.

We do not agree with this argument and are of the opinion that there is no merit in this Assignment No. I.

The subject car came from the State of Alabama, which state has no title registration law. Title is acquired there simply by a bill of sale and tag receipt. Falcon purchased the car from Alfred Massey who gave it a bill of sale purported to have been signed by Jack Waller, and he also gave it a tag receipt. The line where the vendee’s name should appear was left blank, such being referred to as an open bill of sale. Falcon’s owner did not see Waller execute the bill of sale.

When Falcon sold the car to Seals, it manually passed to him the papers received from Massey, and it received the purchase price of the automobile. No effort was made to comply with any duties of a designated agent as set forth in the statute. Seals subsequently sold the automobile to an individual customer and caused papers for title to be sent to the Comptroller. It developed that the title was not valid, the FBI impounded the vehicle and Seals sustained the loss.

Falcon failed to perform the duties required of it by Mississippi Code Annotated § 63-21-9(b) (1972), which is as follows:

“(b) After July 1, 1969, any dealer, acting for himself, or another, who sells, trades or otherwise transfers any used vehicle as defined in this chapter, shall furnish to the purchaser or transferee, without charge for either application or certificate of title, an application for title of said vehicle and cause to be forwarded to the motor vehicle comptroller any and all documents required by the motor vehicle comptroller to issue certificate of title to the purchaser or transferee. The purchaser or transferee may then use the duplicate application for title as a permit to operate vehicle as provided in section 63-21-67, until certificate of title is received.”

Falcon failed to perform the duties required of it by Mississippi Code Annotated § 63-21-15 (1972). Significant duties required by said section are:

“(2) The application shall be accompanied by such evidence as the comptroller reasonably requires to identify the vehicle and to enable the comptroller to determine whether the owner is entitled to a certificate of title and the existence or nonexistence of security interests in the vehicle, and whether the applicant is liable for a use tax as provided by sections 27-67-1 to 27-67-33, Mississippi Code of 1972.
(5) Each application shall contain or he accompanied by the certificate of a designated agent that the vehicle has been physically inspected by him and that the vehicle identification number and descriptive data shown on the application, pursuant to the requirements of subsection (l)(b) of this section, are correct, and also that he has identified the person signing the application and witnessed the signature.
(6) If the application is for a first certificate of title on a vehicle other than a new vehicle, then the application shall conform with the requirements of this section except that in lieu of the manufacturer’s statement of origin, the application shall be accompanied by a copy of the bill of sale of said motor vehicle whereby the applicant claims title or in lieu thereof certified copies, of the last two years’ tag and tax receipts or in lieu thereof such other information the comptroller may reasonably require to identify the vehicle and to enable the comptroller to determine ownership of the vehicle and the existence or nonexistence of security interest in it. If the application is for a vehicle last previously registered in another state or country, the application shall also be accompanied by the certificate of title issued by the other state or country, if any, properly assigned.”

Falcon was not exempted from obtaining a certificate of title under Mississippi Code Annotated § 63-21-11 (1972), which provides :

“No certificate of title need be obtained for:
(b) A vehicle owned by a manufacturer or dealer and held for sale, . . . .”

Falcon was not required to obtain a certificate of title for the vehicle as long as it held same for sale. The statute does not limit sale to retail sale, nor does it exclude a sale to another dealer. Any practice of dealers in selling automobiles to each other without complying with these sections may be for their convenience, but it does not exempt them in a case such as here.

Had Falcon performed the duties required by § 63-21-9 and § 63-21-15, which admittedly it made no attempt to perform, it is probable that the defective title would have been discovered and Seals would not have sustained the loss. The condition of the bond executed by appellant for the designated agent, Falcon Park Motor Company, Inc., is:

“THE CONDITION OF THIS OBLIGATION IS SUCH, that if the aforesaid principal shall well and faithfully perform his duty as such ‘designated agent’ then this obligation shall be void, otherwise to remain in full force and effect.”

In State, For Use of Smith v. Smith, 156 Miss. 288, 125 So. 825 (1930), this Court said:

“[T]he official bond of a public officer is a contract which the law requires him to execute, by which he and his sureties covenant and agree that he will faithfully discharge all of the duties of his office, which contract is breached by the failure of the officer to discharge any of his official duties.” (Emphasis added). 156 Miss, at 292, 125 So. at 826.

The very purpose of the bond is to require the designated agent to faithfully perform its duties and is for the protection of those who may be injured as a result of any such failure. Damage may result from a negligent failure or omission to perform the duty as well as from a negligent performance of the duty. This principle of law is stated in 65 C.J.S. Negligence § 2(6), at 469-70 (1966):

“[I]n a legal sense every omission to perform a duty imposed by law for the avoidance of injury to persons or property may constitute negligence, and the result is the same whether the duty is to do, or to refrain from doing, a certain thing. It is, accordingly, well settled that actionable negligence may consist of, or be based on, either omission or commission, or it may consist of both omission and commission. . . .”

In Columbus & G. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277 (1935), this Court held:

“Actionable fault on the part of a defendant must be predicated on action or non-action, accompanied by knowledge, actual or implied, of the facts which make the result of his conduct not only a probable result, but a result also which he should, in view of those facts, have reasonably anticipated. . . . ” 172 Miss. at 521, 160 So. at 279.

II.

The trial court erred by allowing hearsay testimony and repeated references to a “stolen car” and by making prejudicial comments in the presence of the jury and in overruling appellant’s motion for a mistrial.

Seals testified that he was present and saw an FBI agent examine the automobile and discover that the identification numbers had been changed. He saw the FBI agent impound the vehicle, and he subsequently bought it back from an insurance company which had paid the original owner for the loss. This was direct testimony and was competent.

The record reflects overwhelmingly that the title to the vehicle was defective and that Seals perfected the title by repurchasing the vehicle. The duties imposed upon a designated agent are for the purpose of passing good title to a vehicle.

The trial judge did make statements about a stolen automobile, but from time to time he told the jury he was not saying the car was stolen and that it was the jury’s duty to determine that question, We are of the opinion that the statements were not prejudicial error and that there is no merit in this assignment,

III.

The trial court erred in refusing appellant’s requested Instructions Nos. 10, 11 and 14 and in granting Seals’ Instructions Nos. 4, 6 and 7.

We have carefully reviewed the instructions, the pleadings and the evidence, and we are of the opinion that appellant’s requested Instructions Nos. 10, 11 and 14 were properly refused. Appellant requested and was given Instruction No. 3 which told and emphasized to the jury that all instructions given by the court for the plaintiff and for both defendants must be considered as a whole by the jury.

When all instructions are considered as a whole the jury was properly instructed, and there is no merit in Assignment No. III.

IV.

The lower court erred in allowing a copy of the bond in evidence.

The declaration charged that Falcon was a designated agent and was operating as an agent of the Comptroller in carrying out the licensing and titling of automobiles. Further, that as such agent Falcon had entered into bond in the amount of $5,000.00 with the State for the faithful performance of its duties of properly titling motor vehicles. A copy of the bond was attached to the declaration as Exhibit A and made a part thereof as if fully copied therein. Appellant admitted all such allegations but simply denied any variance between the bond marked “Exhibit A” and the original bond. There was nothing in the evidence to reflect any vari-anee, and there is no merit in assigned error No. IV.

For the reasons stated above, this case must be and the same is hereby affirmed.

AFFIRMED.

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


text:
    Nolan A. EVANS v. RAYMOND CONCRETE COMPANY and Liberty Mutual Insurance Company.
    No. 48637.
    Supreme Court of Mississippi.
    April 27, 1976.
    Breland & Barnett, Gulfport, for appellant.
    Eaton, Cottrell, Galloway & Lang, Gulf-port, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Reversed and remanded to the Workmen’s Compensation Commission.

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


text:
    COMBINED INSURANCE COMPANY OF AMERICA v. Birl SIMS.
    No. 48631.
    Supreme Court of Mississippi.
    April 27, 1976.
    W. A. Huff, Forest, for appellant.
    Pittman & Nobles, Jackson, for appellee.
    Before PATTERSON, P. J., and SMITH and BROOM, JJ.
   Appeal from Circuit Court, Smith County ; George B. Grubbs, Judge.

AFFIRMED AS MODIFIED.

GILLESPIE, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concurring.


text:
    Ozie Lee ARCHIE v. STATE of Mississippi.
    No. 48623.
    Supreme Court of Mississippi.
    April 27, 1976.
    Marshall E. Hanbury, Stephen L. Beach, III, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Gordon Roach, Special Judge.

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

REVERSED AND APPELLANT DISCHARGED.

GILLESPIE, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ.


text:
    Richard LARGENT et al. v. CITY OF JACKSON et al.
    No. 48609.
    Supreme Court of Mississippi.
    April 27, 1976.
    Butler, Snow, O’Mara, Stevens & Can-nada, Harold D. Miller, Jr., Jackson, for appellants.
    Robert G. Nichols, Jr., Jackson, for ap-pellees.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

REVERSED AND RENDERED.

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


text:
    Evelyn F. SIDES v. William C. MALONEY, Jr.
    No. 48666.
    Supreme Court of Mississippi.
    April 27, 1976.
    Fred M. Witty, Greenwood, for appellant.
    Campbell & DeLong, Greenville, for ap-pellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

AFFIRMED.


text:
    Marion C. MOORE v. NOXUBEE COUNTY, Mississippi.
    No. 48587.
    Supreme Court of Mississippi.
    April 27, 1976.
    Stone & Graham, Columbus, for appellant.
    LeRoy R. Kenneday, E. H. Britton, Macon, Threadgill & Smith, Columbus, for appellee.
    Before PATTERSON, P. J., and SUGG and BROOM, JJ.
   Appeal from Chancery Court, Noxubee County; Lenore L. Prather, Chancellor.

Affirmed.


text:
    ConAGRA, INC. v. W. R. MILLS.
    No. 48602.
    Supreme Court of Mississippi.
    April 27, 1976.
    W. Vol Jones, William Vol Jones, Jr., ■Waynesboro, for appellant.
    Louie M. Bishop, Paul S. Griffith, Way-nesboro, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Wayne County; J. Shannon Clark, Chancellor.

AFFIRMED.


text:
    John RAY v. STATE of Mississippi.
    No. 48840.
    Supreme Court of Mississippi.
    April 20, 1976.

      Beach, Beach, Luckett & Hanbury, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Pete J. Caj oleas and John C. Underwood, Jr., Sp. Asst. At-tys. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   INZER, Presiding Justice, for the Court:

John Ray, appellant, was indicated in the Circuit Court of Pike County for the" crime of discharging a firearm into a dwelling house. Pursuant to his motion for a change of venue trial was had in the Circuit Court of Lawrence County. Defendant was convicted and sentenced to serve a term of ten years in the State Penitentiary. From this conviction and sentence he appeals. We reverse and remand.

There were no eye witnesses to establish a connection between appellant and the crime charged, and the state’s case was based entirely upon circumstantial evidence. The principal facts reflected by the record are as follows:

At about 10 A.M. on November 1, 1973, Mrs. Katherine Roach, wife of Judge J. Gordon Roach, upon entering the sun parlor at the front of their home, located at 310 Kentucky Avenue in the City of Mc-Comb, discovered holes in the front windows and in the wall opposite these windows. Upon investigation by the police, the holes were determined to have been made by a .00 buckshot. The pellets had penetrated both the window glass and surrounding wooden frames and had crossed the room and pierced the wall opposite the window.

On the previous day, which was Halloween, Mrs. Roach spent the entire day at home. During that day she cleaned the sun parlor and everything was in order. Nothing unusual occurred until that night. Judge Roach returned home from a meeting about 10:15 P.M. As he approached his home driving east on Kentucky Avenue, he observed nothing unusual. He turned left into his driveway and parked his car in the rear of his house and entered his home by the kitchen door. He and Mrs. Roach were in the den watching television with all the lights in the house off, except in one bathroom, that was not visible from the street. About ten minutes after Judge Roach arrived home, he heard a car traveling west on Kentucky Avenue making a loud noise because of some defect in the muffler. At about the same time, he heard three or four loud explosions that he said could not have been firecrackers but were shotgun shots. He telephoned the police and informed them that someone was shooting in the area. Nothing else of an unusual nature occurred that night. The next morning Mrs. Roach discovered that her home had been shot into.

Mr. and Mrs. Lamar Rushing live next door to the Roach’s home and although their home is not directly on the corner, it is in close proximity to the intersection of Kentucky Avenue and Broadway Street and the intersection is clearly visible from their home. On the night of October 31, 1973, the Rushings were at’ home watching television when they heard a car with a loud muffler stop in front of their house. Mr. Rushing went to the front door to see if he could get the tag number of the car because some drag racing had been occurring on that street. Mr. Rushing testified that the first time he saw the car at about 10:10 P.M. it turned off Broadway and was traveling west on Kentucky Avenue. The next time the Rushings heard the car it was traveling east on Kentucky Avenue and turned south on Broadway. Both Mr. and Mrs. Rushing said that the car was traveling very slowly and that they were able to get a clear view of it. Both described the car as being a Pontiac Grand Prix with brown bottom and white top. It had a fine white stripe down the side with one hubcap on the left and no hubcaps on the right side. They noticed dents in the rear of the trunk and on the left front door. Neither were able to get the tag number. The next time they heard the car it was traveling west on Kentucky Avenue. Mr. Rushing said he heard it coming, and by the time he got to the door the car stopped in front of his house. When he opened his door, the car took off, as he stepped on the porch he heard three or four shots. He said as far as he could tell the shots were coming from the car. Mr. Rushing stated that he observed what he thought were two occupants in the front seat of the car, but he could not identify these occupants, either as individuals or generally as to color, sex, or dress. Mrs. Rushing also heard the car and the shots, but did not see the car on its third trip. She said she saw the same car pass in front of her home about 2 A.M. on that night. Both Mr. and Mrs. Rushing identified photographs of the automobile allegedly driven by appellant on this night as being the car they saw passing in front of their home when the shots were fired.

Police Officer Billy Knight was on duty on the night in question and at 10:30 he heard a radio communication regarding shooting going on near the Roach home. When he heard the communication he was about one block from the Roach home driving west on Georgia Street. He did not respond to the call but continued west on Georgia Street. As he approached the intersection of Georgia and Caston Streets, about four blocks from the Roach home, he saw a white over brown Pontiac Grand Prix stop at a stop sign at the intersection and then proceed south on Caston at about 20 to 25 miles per hour. As this car passed in front of him, he saw the driver and recognized him as being the appellant, John Ray. Another person was in the front seat, but he could only identify this person as being white. He could not tell whether the person was male or female. He testified that he noticed that the car was running rough and the muffler was hanging down. Later that same night he saw the car parked in front of appellant's home.

The following day after learning of the shooting the police found four green .12 gauge .00 shotgun shell hulls on Kentucky Avenue near the north curb in front of the Roach home. The distance between the easternmost point and the westernmost point where the shells were found was about 21 steps.

Further investigation revealed that on October 24, 1973, Gentry Dowland,. a game warden, had received notice that someone was shooting east of Fernwood. He went to investigate and about two miles east of Fernwood he saw a 1971 Pontiac, white over brown, or chocolate car, parked on the roadside. At the time he saw the automobile, he heard shots from a .22 caliber rifle and a single shotgun shot off to the southwest. Investigating, he came upon a person named Freddie Andrews carrying a .22 rifle and a dead squirrel. Andrews did not have a hunting license and Dowland gave him a ticket requiring him to answer the charge of hunting without a license. Although Andrews told Dowland that he had been hunting alone, Dowland observed that the squirrel had been shot by a shotgun instead of a rifle. Investigating further, Dowland came upon the appellant to the southeast of where the car was parked. Appellant was carrying a shotgun but had no game. When appellant was asked for his hunting license he stated that he did not need a license because he was not hunting but was just shooting snakes. After some words, Dowland placed appellant under arrest for hunting without a license and seized from him a .12 gauge shotgun and one unfired .12 gauge shotgun shell loaded with .06 shot, which Dowland ejected from the gun. At the jail, Dow-land seized seven additional unfired blue .12 gauge shotgun shells loaded with No. 6 shot, which appellant had in his jacket. Later that day after bail was posted for appellant by his sister, the gun was returned to him, but the shells were retained by the game warden. Both the justice of the peace and the game warden identified the gun as being a .12 gauge pump gun.

On November 1, 1973, during an investigation of the shooting into the Roach home, Dowland and several other officers returned to the woods where appellant had been arrested and in that general area they found a blue .12 gauge Remington Peters shotgun shell hull that had printing on it showing it had been loaded with No. 6 shot.

The investigating authorities delivered to the Mississippi Crime Laboratory the four green Remington Peters .00 shotgun hulls found in front of the Roach home which became laboratory exhibits No. 1, 2, 3 and 4. The blue .12 gauge Remington Peters hull found in the woods near where appellant was arrested became laboratory exhibit No. 5, and the seven unfired .12 gauge. Remington Peters shotgun shells seized by the game warden at the jail became laboratory exhibits R, S, T, U, V, W and X.

John Dial, a criminologist employed by the Mississippi State Crime Laboratory, who qualified as an expert, testified that exhibits 2 and 3, being two of the hulls found in front of the Roach home and exhibit No. 5, being the hull found in the woods, had been fired by the same gun. The other two hulls found in front of the Roach home had been mutilated so that he could not tell whether they had been fired by the same gun as fired by exhibit No. 5. Dial also testified that exhibits S, T, and X, being three of the unfired shells taken from appellant at the jail, had been chambered in the same gun as laboratory exhibit No. 5, being the hull found in the woods. On cross examination Dial stated that he could not tell whether they had been fired by an automatic or a pump gun, but in all probability they had been fired by a pump gun due to the fact of the markings on the hulls.

Over the objection of appellant, the state was allowed to introduce into evidence the certified copy of a sentencing order showing the conviction of appellant’s brother, Michael Terry Ray, entered on the minutes of the Circuit Court of Pike County on October IS, 1973, pursuant to his conviction for the possession of marijuana with the intent to distribute for which he was sentenced to serve a term of six years in the State Penitentiary.

Mrs. Grace Myerhoff was called as a witness by the defendant, and she testified that she lived across the street from the Roach home. On the night of October 31, 1973, she heard a car with a loud exhaust pass her home two or three times. She went to the front window and looked out. She did not see an automobile, but did see a pedestrian of medium height and build walking west on the sidewalk of Kentucky Avenue, being at that time about her driveway and across the street from the Roach home. The pedestrian was wearing a three-quarter length coat and a floppy hat. She could not tell whether the person was male, female, white or black. She did not observe anything being carried by the pedestrian. Within a matter of seconds after observing this pedestrian, she heard an automobile with a loud exhaust go west on Kentucky Avenue and the sound of three or four explosion-type noises.

Appellant did not testify in his own behalf, but introduced testimony tending to show that he did not own a .12 gauge shotgun, and that the gun he had in his possession on October 24, 1973, when arrested by the game warden, was owned by his brother-in-law Bill Scott, and that he had borrowed this gun from his sister, the wife of Bill Scott, on the morning of October 24, 1973. This gun was returned to Mrs. Scott after she posted bail for appellant after his arrest. This gun, along with another .12 gauge pump gun, was taken to the crime laboratory on July 30, 1974, and the expert, John Dial, fired three shells from each gun and compared these against the green .12 gauge buckshot hulls found in front of the Roach home, and the blue .12 gauge shotgun shell hull found in the woods. By this examination he found that none of these hulls had been fired from either gun owned by Bill Scott.

In addition, appellant introduced a witness who testified on the night of October 31, 1973, appellant was at a nightspot called “The Game Reserve,” at the time the shots were alleged to have been fired on Kentucky Avenue. A witness also testified that on the night in question the white over brown automobile owned by appellant’s wife was being used by Freddie Andrews, who had driven it to the home of a witness, Janice Wegrzyn, where it remained from 10:15 P.M. until a little after 11 P.M.

On appeal, appellant argues several points for reversal of his conviction, but we will only discuss those points that we deem merit discussion.

Appellant filed a motion to suppress the shotgun shells seized and taken from him by the game warden as the fruits of an unlawful arrest, and to suppress all testimony in relation thereto. A hearing was had on the motion and it was overruled. On the trial of the case on the merits, appellant renewed his motion and it was again overruled. This action by the trial court is assigned as error. Appellant argues that the game warden had no warrant for his arrest and that he was not committing a misdemeanor in the presence of the officer. The validity of the arrest hinges upon the question of whether appellant was committing a misdemeanor in the presence of the game warden. Appellant argues that although he was in the woods carrying a shotgun where the game warden heard a shotgun fire, he had no game and was only hunting snakes. Therefore, he was not committing a misdemeanor in the presence of the officer. We find no merit in this contention. Section 49-7-49, Mississippi Code 1972 Annotated, provides as follows:

Prima facie evidence of hunting, trapping or fishing.

For the purpose of this chapter, the fact that any person shall be found in the possession of a trap, fishing tackle, or other device of any description whatsoever used for the purpose of taking wild animals, wild birds or fish in the natural habitat of such animals, birds or fish, or in the possession of dead bodies of wild birds, wild animals or fish within the field, in the forests or on the public highways or on the waters of this state, shall be prima facie evidence that such person is or has been hunting, trapping or fishing.

In the light of this statute and the facts of this case, we are of the opinion that appellant was committing the misdemeanor of hunting without a license in the presence of the game warden, and that his arrest was lawful. See Musgrove v. State, 236 Miss. 513, 110 So.2d 919 (1959).

Appellant urges that the trial court was in error in refusing to grant his requested peremptory instruction at the conclusion of the evidence. Appellant argues that the evidence was entirely circumstantial and not sufficient to establish his guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. After a careful review of the evidence, we are of the opinion that the evidence was sufficient to make a jury issue of the appellant’s guilt.

Appellant assigns as error the overruling of his objection to the introduction in evidence of a certified copy of the order of the circuit court showing the conviction and sentencing of his brother Michael Terry Ray on a narcotics charge. The certified copy of the order shows that appellant’s brother was convicted in the Circuit Court of Pike County of the crime of the possession of marijuana with the intent to deliver, and was on October 15, 1973, sentenced to serve a term of six years in the State Penitentiary. There is a general rule that evidence of another crime committed by another person shall not be presented against an accused in a criminal trial. Hosey v. State, 300 So.2d 453 (Miss.1974). However, the state argues that this evidence was admissible to show a motive for the accused to commit the crime for which he is charged. The difficulty with this argument is that a complete absence of any evidence exists to show that the accused knew of the conviction and sentence of his brother, or that he ever expressed any ill will against the judge as a result of such sentence. Absent such a showing the evidence was irrelevant and immaterial, and its admission constituted error. Gilhim v. State, 62 Miss. 547 (1885); Humphreys v. State, 122 Miss. 41, 84 So. 141 (1920).

The state contends that even if it were error to admit this testimony, it was harmless error. With this we cannot agree. The guilt of the accused depended entirely upon circumstantial evidence and was a close question on the facts. As in Hum-phreys, supra, wherein this Court stated:

While the testimony, if believed is sufficient to support a verdict of guilty, the record nevertheless presents a close case on the facts. It is therefore not only of great concern to the accused in this case but of great importance to an absolutely fair administration of justice, that no error should be committed by the trial court in the exclusion or admission of testimony, or in stating the applicable law of the case to the jury.
(122 Miss, at 44, 45, 84 So. at 142).

We are of the opinion that the admission of the evidence relative to the conviction of the brother of the accused on a narcotics charge was highly prejudicial and constituted reversible error.

Appellant also assigns as error the refusal of the trial court to allow his counsel additional time for summation and argument to the jury. The record reflects that the trial court limited the time for argument of counsel to thirty minutes for each side. Counsel for appellant requested additional time and the court refused to grant the same. Relying on Wingo v. State, 62 Miss. 311 (1884), appellant contends that restricting his counsel to thirty minutes to argue this case based entirely on circumstantial evidence deprived him of a fair trial. In Wingo, the evidence was, as here, circumstantial and conflicting. Twelve witnesses were examined, seven for the state and five for the appellant. The court limited the time for argument to one hour to each side, and counsel for the appellant objected to that limitation. On appeal, this Court reversed the judgment of the trial court because the time allotted the appellant to make his defense before the jury was insufficient. In doing so, the court pointed out that by virtue of the Constitution the accused has the right to be heard by himself or counsel or other, and that this right is of inestimable value, not only to the accused but to the administration of public justice. The Court stated:

The right to be heard exists, and it cannot be denied, but intolerable evils might result and the very purposes for which courts of justice were instituted might be defeated if no limitation could be imposed on the freedom of speech in this behalf. Judicial authority may be, and s'hould be, asserted to prevent abuse in this respect, but to limit the argument of counsel for the defense in a criminal prosecution is a matter of great delicacy, and should be done with the utmost prudence and caution. It would always be safer in such case to err on the side of liberality than to take the hazard of doing injustice. Limitations on the argument of counsel which might be comparatively harmless and be approved in the trial of civil causes and minor offenses, might be extremely dangerous and be condemned in the trial of grave criminal charges. When the time for the argument of counsel to the jury is restricted by the court, it should be very clear that the right of the accused to be heard has not been essentially impaired, and that an opportunity for making full and complete defense on the whole case has not been denied. What time would be necessary or reasonable for this purpose would depend, to a great extent, upon the character and circumstances of the particular case.
(62 Miss, at 315).

In Turner v. State, 220 So.2d 295 (Miss. 1969), in discussing this subject we stated:

A trial judge should be meticulously careful in seeing that the defendant is afforded ample time in any case in order that he may adequately present to the jury the instructions and have sufficient time for his summation. The ultimate of a criminal prosecution is the verdict of the jury and frequently the decision of the jury is made substantially on the presentation of the law and the summation of the facts. It is a far better thing for the trial court to be indulgent in the granting of time for presenting the instructions in summation than to be strict or to be frugal in the allowance thereof. (220 So.2d at 298). (Emphasis added).

While we are fully aware of the crowded dockets in the trial court and of the necessity of conserving time in the courts, nevertheless, the court should not unduly limit the time allowed an accused to present his summation to the jury. In the case before us, eighteen witnesses were examined, twelve for the state and six for the defense. The facts developed by the state to implicate the accused in the crime charged were involved and complicated, and, in our opinion, the trial court abused its discretion in restricting counsel for appellant to thirty minutes to argue this case to the jury.

Appellant also assigns as error the granting at the request of the state, Instruction Nos. 2 and 5. These instructions read as follows:

The Court instructs the jury for the State that if you believe from the evidence in this case, beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with the defendant’s innocence, that he, the defendant, on or about the 31st day of October, 1973, in Pike County, Mississippi, did wilfully, unlawfully and feloniously discharge a shotgun into the dwelling house owned by J. Gordon Roach, which dwelling house was then and there occupied by the said J. Gordon Roach and his wife Katherine Roach, or, if you believe from the evidence in this case, beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with the defendant’s innocence, that at the said time and place, the defendant John Ray was present at and consenting to the commission of the said crime with which he is charged, and did any overt act which was immediately connected with or leading to its commission, then it is your sworn duty to find the defendant guilty as charged.

and,

The Court instructs the jury for the state that any person present, aiding, abetting, and consenting in the commission of a felony is indictable and triable as a principal, and if you believe from the evidence in this case, beyond a reasonable doubt, that on or about October 31, 1973, in Pike County, Mississippi, the defendant, John Ray, was present, consenting, aiding, and abetting and did any act to assist in shooting or discharging a shotgun into the dwelling of J. Gordon Roach, then it is your sworn duty to find the said John Ray guilty as charged.

Appellant objected to these instructions on the ground no evidence was presented to show that, if the accused was present, he was aiding, abetting or consenting to the crime charged. We are of the opinion that sufficient evidence was presented to justify the granting of the instructions, but on the retrial of the case, they should not be granted in the form given. Both instructions are objectionable for the reason that they assume that the crime charged was committed by another. Under the facts of this case, before appellant could be convicted as an accessory before the fact, the burden is upon the state to prove beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis that the crime charged was committed by another, and to further prove beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis that the accused was present, consenting, aiding and abetting such person in the commission of the crime charged. Consequently, on retrial the jury should be so instructed. Smith v. State, 237 Miss. 498, 115 So. 2d 318 (1959), and Wages v. State, 210 Miss. 187, 49 So.2d 246 (1950).

We have considered the other errors assigned and find them to be without merit or not likely to reoccur on another trial.

For the reasons stated, this case must be and is reversed and remanded for another trial.

REVERSED AND REMANDED.

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


text:
    J. D. CUMBERLAND v. STATE of Mississippi.
    No. 48976.
    Supreme Court of Mississippi.
    April 13, 1976.
    Rehearing Denied May 4, 1976.
    Jerry L. Bustin, Forest, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Scott County; Roy Noble Lee, Judge.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON and BROOM, JJ., concurring.

LEE, J., took no part.


author: ROBERTSON, Justice, for the Court:

text:
    SEAGO ENTERPRISES, INC., et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 48566.
    Supreme Court of Mississippi.
    April 20, 1976.
    Wiltshire & Walman, McComb, for appellants.
    Statham & Watkins, Magnolia, for appel-lee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice, for the Court:

The State Highway Commission filed condemnation proceedings in the special court of eminent domain (County Court of Pike County) against E. L. Boyd and wife, Ruby Boyd, owners, and Seago Enterprises, Inc., lessee, to condemn a strip of land 10 feet wide and 215.8 feet long, bordering the south right-of-way line of U.S. Highway 98, which strip will be used in the relocation and reconstruction of Mississippi Highway 24 and U.S. Highway 98. Boyd’s property consists of .84 of an acre, and the Commission seeks to condemn .05 of an acre, leaving Boyd .79 of an acre, with the same frontage on Highway 98.

Boyd leased the property to Seago on April 8, 1970, for a five-year term at $325 per month. The canopy of the concrete block building used as a service station extends about 10 feet into the present highway right-of-way, but the actual paved portion of the highway is presently 17 feet from the canopy. The paved portion of Highway 98 as widened will be about 7 feet from the canopy. \

Although Seago’s testimony was that after the taking it could not continue to operate its service station and that the value of its leasehold interest would be destroyed, the trial court, nevertheless, refused to allow Seago to present evidence as to its damages, the court’s reasoning being that loss of profits was not a com-pensable item of damages because such loss of profits was too speculative and conjectural.

The trial court also denied Seago’s motion to be allowed to join in the statement of values submitted by the landowner. When both sides rested, the trial court sustained a motion for a directed verdict against Seago. Thereafter the Highway Commission and Boyd, the landowner, agreed on the amount of damages for the land condemned and the trial court instructed the jury to return a verdict for $20,000 in favor of the Boyds. Seago appeals.

Seago contends that it is being deprived of its property without just compensation in violation of the Fifth Amendment to the United States Constitution and Section 17 of the Mississippi Constitution. We agree with this contention. Seago was entitled to present evidence as to the “before and after” value of its unexpired leasehold interest.

Some guidance is given in Lee v. Indian Creek Drainage District Number One, 246 Miss. 254, 148 So.2d 663 (1963), as to how damages to an unexpired leasehold interest should be handled. It was a condemnation proceeding against Mrs. Ethel Lee, the landowner, and W. D. Garrett, Jr., lessee. The appraisement by the commissioners and objections filed by the landowner and lessee were heard by the chancellor on oral and documentary evidence. The testimony introduced as to the total damage to the land ranged from $4,000 to $9,997. The chancellor determined that the total damages amounted to $6,000, and allocated $5,035.45 to the landowner and $964.55 to the lessee. The landowner appealed.

In affirming the decree of the chancellor, this Court said:

“We are also of the opinion that the chancellor was correct in making an award (single) as to damages to the whole property. Where there are different interests or estates in the property acquired by condemnation, the proper course is to ascertain the entire compensation to be awarded as though the property belonged to one person and then apportion this sum among the different parties according to their respective rights.
“The textwriter in 18 Am.Jur., Eminent Domain, Sec. 239, p. 872, has expressed this rule in the following language : ‘ * * * The rule is generally recognized (though not invariably followed) that, where there are several interests or estates in a parcel of real estate taken by eminent domain, a proper method of fixing the value of, or damage to, each interest or estate, is to determine the value of, or damage to, the property as a whole, and then to apportion the same among the several owners according to their respective interests or estates, rather than to take each interest or estate as a unit and fix the value thereof, or damage thereto, separately.’ 18 Am.Jur., Eminent Domain, Sec. 239, p. 872. See also Anno. 69 A.L.R. 1263.” 246 Miss at 263-64, 148 So.2d at 666.
In Lee, we also said:
“In Mississippi, however, we have adopted the minority rule that the taking of a portion of demised premises operates as an apportionment of the rent and dissolves the relation of landlord and tenant pro tanto. Thus, the award of total damages to the property is apportioned between the landlord and the tenant so as to give the landlord the value of his reversion, and rents under the contract, less an abatement for present ■payment. The damage to the leasehold is determined by awarding the tenant the value of his contract (which includes a reduction in his future rents because of the loss of the use of a portion of the leased premises), less the rents due under the terms of his contract, plus the abatement earned for the present payment of rent to the landlord. Board of Mississippi Levee Commissioners v. Johnson [66 Miss. 248, 6 So. 199 (1889)].” 246 Miss. at 266, 148 So.2d at 667-68.

Loss of profits by itself, as a separate item of special damages, is not com-pensable in Mississippi. Miss. State Highway Commission v. Valentine, 239 Miss. 890, 124 So.2d 690 (1960).

29A C.J.S. Eminent Domain § 143, at pages 616-17, has this to say on the measure of damages to a lessee :

“The same rules apply in the condemnation of a right of way over leased premises where only a part of the leasehold is taken. The condemnation of a part of the leased premises may destroy the value of the leasehold. Where only part of a leasehold is taken, the measure of damage is the difference between the value of the remainder before and after the taking, or, as has been said, the difference between the fair market value of the entire leasehold estate and the fair market value of the portion thereof not taken. [Footnotes omitted].”

In 1963, this Court approved the concept of a single award of damages to the whole property, which award would then be apportioned among the owners of the varying interests or estates in the parcel taken, according to their separate interests. Lee v. Indian Creek Drainage District Number One, supra.

The State Highway Commission, the landowners Boyd, and the special court of eminent domain ignored this reasonable and common sense rule approved by this Court some 13 years ago.

In the case at bar, the trial judge first sustained a motion for a directed verdict against Seago Enterprises. Then after the Highway Commission and the Boyds had agreed on the amount of damages to them, the court instructed the jury to find for the landowners alone in the sum of $20,000.

Both of these actions by the eminent domain judge were erroneous. Mississippi Code Annotated, Section 11-27-23 (1972), contemplates that the jury will apportion the damages arrived at in their single verdict among the owners of the various interests in the parcel condemned. Mississippi State Highway Commission v. Central Land & Rental Corp. and Dudley M. Maples, 239 So.2d 335 (Miss.1970).

Inasmuch as Seago appealed only as to the State Highway Commission, the judgment of the Special Court of Eminent Domain has become final as to the landowners, and the Boyds are not parties to nor will they be affected by this decision.

Accordingly, the judgment of the Special Court of Eminent Domain is reversed as to Seago only and this case is remanded for a new trial against the State Highway Commission only.

On retrial, the jury will determine the amount of damages to Seago’s leasehold interest.

REVERSED AND REMANDED.

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


text:
    Douglas Allan GRISSETT v. STATE of Mississippi.
    No. 48973.
    Supreme Court of Mississippi.
    April 20, 1976.
    Thomas R. Trout, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Arthur B. Clark, Judge.

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

Affirmed.

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


author: SUGG, Justice:

text:
    Horace SHARPLIN v. STATE of Mississippi.
    No. 48934.
    Supreme Court of Mississippi.
    April 20, 1976.

      Morris C. Phillips, Jr., Robert N. Brooks, Carthage, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and WALKER, JJ-
   SUGG, Justice:

Horace Sharplin, defendant, was indicted for murder and convicted of manslaughter for the death of Thelma Sharplin, his estranged wife. We reverse and remand for a new trial. The questions are: (1) Was the county attorney disqualified from participating in defendant’s prosecution because of the attorney’s prior representation of defendant in a divorce suit? (2) Was it error to admit evidence of a conditional threat? (3) Did the trial judge err by requesting the numerical division of the jury prior to return of a verdict? (4) What is the proper instruction to give a hung jury?

Defendant and Thelma Sharplin instituted divorce proceedings against one another during mid-1974. Defendant hired the County Attorney of Leake County to represent him in the matter. Defendant was granted temporary custody of the couple’s four-year-old daughter and Mrs. Sharplin was given weekend visitation rights. Pending the divorce, Mrs. Sharplin and Paul Turner, her boyfriend, moved into a house trailer located in a trailer park in Carthage. Shortly before 7:00 a. m. on August 27, 1974, residents of the trailer park awakened to the sound of an argument emanating from Mrs. Sharplin’s trailer. The argument was followed in quick succession by a girl’s voice calling “Daddy,” a man’s voice commanding “lay down on the floor,” and the echo of two gunshots. Several minutes later a man, whom defendant subsequently identified as himself, emerged from the rear door of the trailer carrying a small girl. Defendant knocked at the doors of several residences in the neighborhood seeking police assistance but finally drove himself and the child to the Carthage Police Department. There he informed an officer that he had found Mrs. Sharplin and Paul Turner dead in the trailer. Investigating officers found Mrs. Sharplin slumped on a couch and Paul Turner lying on the living room floor, both scantily clad. Both victims had been shot in the head. Shortly thereafter, defendant was arrested and indicted for the murder of Mrs. Sharplin.

Prior to trial defense counsel moved to exclude the county attorney from participating in the case on the ground that he represented defendant in a divorce suit at the time of the killing and he “possesses or could possess personal knowledge of a privileged. nature concerning this case.” In a hearing on the motion, the county attorney testified that he represented defendant in the divorce suit and admitted that he and defendant discussed threats defendant allegedly made against his wife. However, the attorney asserted that nothing he had learned while representing defendant concerned the present criminal charge because his representation ended with the death of defendant’s wife. Defense counsel’s motion was overruled. During trial and in response to a question asked by the county attorney, a state’s witness testified that defendant made an uncommunicated threat against Mrs. Sharplin two months prior to her death. Defendant now complains that this line of questioning was possible only because of confidences he shared with the county attorney during their former relationship.

It was reversible error to permit the county attorney to participate in defendant’s prosecution. Although a prosecuting attorney’s prior representation of a defendant in a civil suit does not ipso facto bar that attorney from participating in a subsequent prosecution of the defendant, the attorney should be disqualified if (1) the criminal prosecution is substantially related to the prior civil suit or involves essentially the same facts, or (2) the attorney will be called upon to use against the defendant confidential information gained through their former relationship. Gajewski v. U. S., 321 F.2d 261, 267 (8th Cir. 1963), cert. denied 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964); 27 C.J.S. District and Prosecuting Attorneys § 12(6)c at 664-65 (1959).

The facts of this case satisfy both of these criteria. A single event, the death of defendant’s wife, terminated the county attorney’s civil representation of defendant and plunged him into the criminal prosecution of his former client. Undoubtedly, the marital strife that precipitated the divorce suit played an integral, if not all-too-familiar, role in the death of defendant’s wife and his criminal prosecution. Viewed in its entirety, the relationship between the civil representation and the criminal prosecution was so substantial and the facts of each so intertwined that no attorney could be expected to lay aside the confidences imparted to him during the civil suit and proceed with a criminal prosecution of his former client without violating the legal and ethical obligations owed to the former client. Notwithstanding the county attorney’s earnest efforts to avoid a conflict of interest, his participation in defendant’s trial was reversible error.

Our holding is not grounded solely on a real or imagined violation of the attorney-client privilege but draws upon the broader, more exacting ethical obligations and professional responsibilities each attorney owes to a client and the bar to avoid impropriety as well as the appearance thereof.

Defendant complains that the trial court erred by overruling his objection to evidence of a conditional threat he made against his wife. A state’s witness testified that two months prior to the death of defendant’s wife, defendant told him “if they got custody, and we had been talking about Thelma and Paul Turner, if they got custody of the child, that if he had to, he would quit his job, follow them to Canada, and kill them both.” The condition of this threat (permanent custody) was never fulfilled. The trial court admitted this evidence on the grounds that it was not too remote but was probative of the defendant’s state of mind. Defendant now con-' tends that evidence of a conditional threat is inadmissible unless it is first shown that the condition was met, citing Clark v. State, 123 Miss. 147, 85 So. 188 (1920) and Cordell v. State, 136 Miss. 293, 101 So. 380 (1924).

Clark v. State, supra, held it error to exclude evidence of a communicated conditional threat decedent made against defendant, holding that the conditional nature of the threat did not render it inadmissible. The Court specifically declined to say whether admission of the threat was dependent upon fulfillment of the condition, holding that if admissibility were dependent upon satisfaction of the condition, that condition was met in this case. Cordell v. State, supra, held that evidence of a conditional threat was admissible because the condition was fulfilled, citing Clark. Subsequently, Smith v. State, 152 Miss. 114, 118 So. 710 (1928), held admissible the defendant’s threat that his victim “had better not start anything around here; I will shoot him,” on the ground that the threat tended to show malice. Clark and Cordell were cited for support but the matter of a conditional threat was not discussed. To summarize the quandary, Clark declined to state whether fulfillment of the condition was a requisite for admission of the threat; Cordell held evidence of a threat admissible because the condition was fulfilled; Smith held admissible an apparent conditional threat without ever discussing the condition.

We hold that the conditional nature of a threat affects only its weight and not its admissibility. Admissibility does not depend upon fulfillment of the threat; as with other threats, evidence of conditional threats is admissible against an accused to prove state of mind, intent and malice. 1 F. Wharton, Criminal Evidence § 202 at 47 (13th ed. C. Torcía 1972). Accord 1 J. Wigmore, Evidence in Trials at Common Law § 107 at 543 (3rd ed. 1940); 40 Am.Jur.2d Homicide § 316 at 587 (1968); 40 C.J.S. Homicide § 236b at 1168-69 (1944). The lower court correctly held that the conditional nature of the threat was no bar to its admissibility. The remoteness of the threat was a matter for the trial judge to consider and we cannot say that he abused his discretion by admitting this evidence.

We next consider the trial judge’s request for the numerical division of the jury. After deliberating for about an hour and forty minutes, the jury returned to the courtroom and informed the trial judge that no verdict had been reached. The judge then requested the numerical division of the jury without reference to guilt or innocence and was informed that the division was “Nine and three.”

Thereupon the following colloquy took place:

BY THE COURT:
How long has the jury been nine to three ?
BY THE FOREMAN:
Not too long.
BY THE COURT:
Well, the jury has been considering this case now for about an hour and thirty, thirty-five minutes. The Court feels this jury should be able to get together on this case, and I am going to let you go back to the jury room and deliberate some further. Let the jury go back to the jury room.

The jury returned for further deliberations and delivered its guilty verdict approximately thirty minutes later. Defendant contends that the request and receipt of the jury’s numerical division was per se reversible error, citing Brasfield v. U. S., 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). The defendants in Brasfield were convicted of federal charges in a federal court. After several hours of deliberating, the jury returned to the courtroom without having reached a verdict. The court requested the numerical division and was told that it was nine and three, no indication of guilt or innocence being given. The Supreme Court held that the inquiry itself was reversible error, reasoning that a request for numerical division has a coercive and suggestive effect upon those jury members who have not acquiesced in the decision of the majority. Although Bras-field has been dutifully followed in the federal circuits, United States v. Hayes, 446 F.2d 309 (5th Cir. 1971), Jones v. Norvell, 472 F.2d 1185 (6th Cir. 1973), cert. denied, 411 U.S. 986, 93 S.Ct. 2275, 36 L. Ed.2d 964 (1973), it has received a mixed reception among the several state courts which appear more or less evenly divided on its applicability. Some jurisdictions hold that the request and receipt of numerical division without reference to guilt or innocence is reversible error. Taylor v. State, 17 Md.App. 41, 299 A.2d 841 (1973); People v. Wilson, 213 N.W.2d 193, 195 (Mich.1973); Kersey v. State, 525 S.W.2d 139, 141 (Tenn.1975). Other jurisdictions permit divulgement of numerical division without reference to guilt or innocence on the theory that the trial court has the right to ascertain the probability of agreement among the jurors. People v. Carter, 68 Cal.2d 810, 69 Cal.Rptr. 297, 442 P.2d 353 (1968), rev’d on other grounds; Joyner v. State, 484 P.2d 560 (Okla.Crim.App.1971); Huffaker v. State, 119 Ga.App. 742, 168 S.E.2d 895 (1969); State v. Morris, 476 S.W.2d 485,489-90 (Mo.1971).

We conclude that Brasfield was not grounded in a specific constitutional provision that has subsequently been applied to the states through the Fourteenth Amendment, but was announced as a rule of procedure to be followed in the federal courts. We decline to follow this federal procedural rule because we believe that receipt of the jury’s numerical division serves a legitimate purpose consonant with the trial judge’s broad powers of control over the conduct of a trial: it enables the trial judge to ascertain the likelihood of agreement among the jurors. We hold therefore that the mere request and receipt of the jury’s numerical division without reference to guilt or innocence does not coerce the jury and is not error. We believe that the possibility of coercion, if any, lies in the trial judge’s conduct and comments after he receives the division, that is, whether the judge merely affords the jury additional time to deliberate or whether he attempts to force a verdict by suggestive comments or coercive measures.

The object of the jury system is to secure a verdict by a comparison of views and by agreements among the jurors themselves. Although the verdict of the jury should represent the opinion of each individual juror, it does not follow that opinions of jurors may not be changed by conference with each other in the jury room. If the trial judge feels that there is a likelihood that the jury might reach a verdict, he may return the jury for further deliberations by simply stating to the jurors: “Please continue your deliberations,” or he may give the following instruction set forth in the tentative draft of Mississippi Mode Jury Instructions: Criminal, Volume 1, page SO.

I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so.
Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.

We approve the foregoing instruction. It may be given in either criminal or civil cases when the trial judge is confronted by a hung jury. Following publication of this opinion the “Allen Charge” in any of its various forms should not be given. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

In remanding this case for a -new trial we note that the state introduced evidence of defendant’s reputation for violence before defendant put his reputation in issue. This was error and should not recur on retrial. Pegram v. State, 223 Miss. 294, 301-02, 78 So.2d 153 (1955). Additionally, the trial judge erred when he told the jury that they would be sequestered for the night to permit the appearance of a “very material witness.” The witness was the state’s final witness and indeed proved material when he testified to certain incriminating statements made by defendant that could be viewed as tantamount to a confession. However, the trial judge’s remarks exceeded the permissible bounds of latitude generally accorded a judge in explaining the reasons behind a ruling and served only to unduly emphasize the importance of the state’s final witness. Cf. Ratliff v. State, 313 So.2d 386, 388 (Miss.1975).

The other assignments of error have been considered but do not merit discussion.

This case was considered by a conference of the Judges en banc.

REVERSED AND REMANDED.

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

LEE, J., took no part.

      . Mississippi Model Jury Instructions: Criminal was prepared by a committee of trial judges in cooperation with the Mississippi Judicial College. This work will be available to the bench and bar within the near future.

      . The instruction is in accord with Dixon v. State, 306 So.2d 302 (Miss.1975) and Section 5.4 ABA Standards for Criminal Justice.


text:
    W. C. BROWN and Carrie Mae Brown v. FINDLEY SEED COMPANY, INC.
    No. 48648.
    Supreme Court of Mississippi.
    April 20, 1976.
    Smith & O’Hare, Boyd P. Atkins, Cleveland, for appellants.
    Jacobs, Griffith & McIntosh, John Kirk-ham Povall, Cleveland, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

AFFIRMED.


text:
    Eddie JONES v. STATE of Mississippi.
    No. 48972.
    Supreme Court of Mississippi.
    April 6, 1976.

      Alexander & Johnston, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice, for the Court:

Eddie Jones (defendant) was tried in the Circuit Court of Bolivar County for the murder of his wife, Mrs. Vernell Jones, and convicted of manslaughter. The court sentenced him to ten years in the penitentiary.

The facts are stated in the light most favorable to the state in view of the jury verdict of guilty.

Defendant went to bed on a Saturday night about 10 o’clock, leaving his wife up cooking. About 11 o’clock P.M., Mrs. Jones and her three small children walked a half mile to the home of her sister, Mrs. Ollie Mae Sanders. After arriving at her sister’s home, Mrs. Jones ironed and put on a blue-green, long sleeve dress trimmed with white rick-rack. Mrs. Jones asked her sister to keep her children; she then told her that she, Mrs. Jones, and her husband (the defendant) had had a fight and that she was going to the Paradise Lounge. Mrs. Jones, who was not drinking at that time, left her sister’s home about 11:30 P. M. She was next seen between 1:00 and 3:30 A.M. in the Town of Mound Bayou at a service station to which she had walked to get out of the rain. At that time she was wearing the blue dress and was not drunk. While she was at the station, one Henry Stokes arrived, and, upon Mrs. Jones’ request, he took her home. When they arrived at her house, he blew his horn. Defendant came to the door, and Stokes said: “Hey, man, here your wife.” Defendant said nothing. According to Stokes, Mrs. Jones, who did not appear to be drunk, got out of the car and walked to the house.

About 9:00 A.M. on Sunday morning, Defendant went to the home of his sister-in-law, Mrs. Sanders, picked up his children and took them home. Later that Sunday morning, a relative came by to take the Joneses to dinner, and the Defendant told the relative that Mrs. Jones had gone away. However, she had not gone away; at that time, she was lying on a bedroom floor where she remained until about noon on Monday. On Monday morning, Defendant went to work, but according to his statement, before he left he told one of the children to go and tell Mrs. Sanders if his wife did not get up at the usual time. Mrs. Jones did not get up, and the child went to the home of his aunt and told her he could not arouse his mother.

About noon on Monday, Mrs. Sanders went to the Joneses’ home where she found her sister dressed in blue jeans and a yellow halter and lying on the bedroom floor with a pillow under her head. At that time, the blue dress with the white rickrack trim was lying on the bed in the middle bedroom. A blue bra was found in the closet. Both had what appeared to be blood on them. The dress was placed in the closet. Mrs. Sanders tried but failed to arouse her sister, and then she took her to the hospital where she (Mrs. Jones) died of subdural hematoma secondary to trauma at 8:29 P.M. on that Monday night.

Medical evidence showed that one of Mrs. Jones’ eyes was closed, that there were recently inflicted injuries to the head, and that the head injuries, of which she died, could have been caused by blows inflicted by either a blunt instrument or by a propelling of her body against the wall or floor. The injuries were more than would normally result from falling.

The Defendant endeavored to show, and testified in support thereof, that his wife came home early Sunday morning in a drunken condition, that she was in a drunken condition when he went to bed about 10 P.M. on Saturday night, and that she had been drinking excessively for a considerable period of time. His defense was that she fell repeatedly after she got in the house and that he put a pillow under her head and changed her clothes because her dress was wet when she came home. Defendant admitted that his wife did not wake up after she came home early Sunday morning.

Several questions are raised on this appeal. The State concedes that the arrest of Defendant and the searches, hereinafter to be mentioned, were invalid. We find it unnecessary to state the circumstances attending the arrest and searches except to note that if the proof had been offered, it appears likely that the State could have shown probable cause for the arrest. It follows that the court erred in admitting the plat of the inside of Defendant’s home which was made by the deputy sheriff. The pictures of the interior of the house were likewise inadmissible. It also follows that the court erred in admitting the quilt and sheet which contained what appeared to be bloodstains and which were removed from the house, without a search warrant, two days after Defendant’s arrest.

We also hold that the statement given to the officers while Defendant was held after the illegal arrest was inadmissible. Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963). Brown is authority for the proposition that the giving of the Miranda warning in and of itself is not sufficient to guarantee that the statement obtained after the illegal arrest was not obtained by exploitation of the illegal detention. In Brown, the Court said:

In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be “sufficiently an act of free will to purge the primary taint.” (Citations omitted) 422 U.S. at 602, 95 S.Ct. at 2261, 45 L.Ed. at 426.

No effort was made to comply with Brown.

Did the trial court err in refusing to admit certain medical records offered by the Defendant?

In an effort to prove that the deceased was a drug addict and died from causes other than subdural hematoma resulting from recent injuries, the Defendant offered medical records showing the treatment of Mrs. Jones over a period of years. Some of the records showed that she had taken tranquilizers and other drugs under a doctor’s prescription. This was a matter for the sound discretion of the trial judge, and we cannot say he erred in refusing to admit these medical records.

Was it error to admit into evidence some partially burned items identified as part of the blue dress worn by Mrs. Jones and part of a bra not worn by her?

On the Sunday morning following Defendant’s arrest, the officers found some partially burned items identified as parts of the rick-rack trim on the blue dress worn by Mrs. Jones and part of a bra which was not shown to have been worn by her. These items were located across a ditch some 65 feet away from Defendant’s house. It was not shown that they were part of the premises occupied by Jones. We are of the opinion that under the authority of Campbell v. State, 278 So.2d 420 (Miss.1973), and Dotson v. State, 260 So. 2d 839 (Miss.1972), there is no basis for holding that there was a violation of Defendant’s Fourth Amendment rights in the seizure of these items. They were in open view to the public, and were seen by Mrs. Sanders as well as the officers. The proof fails to show the materiality of the partially burned bra because there was no evidence that it was worn by the deceased at the time in question. Thus, on retrial the partially burned bra, along with any other items not shown to be material or relevant, will not be admissible into evidence. But, as already stated, the burned parts of the dress will be admissible.

Did the court err in refusing to give Defendant’s requested instructions Nos. 15,16 and 17?

Defendant erroneously argues that Instruction No. 17 was refused. The record shows that the requested instruction was given. All three of the instructions referred to concern circumstantial evidence and instruct the jury that the evidence must exclude every hypothesis but the one proposed to be proven. Since Instruction No. 17 was given, it was not error to refuse the other two.

Did the court err in permitting testimony concerning the blue bra which was found in a closet and which was observed by Mrs. Sanders when she went to her sister’s home in response to the child’s statement that his mother could not be awakened?

This assignment of error and one concerning a white bra are based on the same proposition: The bras and testimony concerning them are inadmissible because the state failed to permit Defendant’s counsel to inspect them as required by a court order. Upon retrial we feel confident counsel will have had an opportunity to inspect the bras. Thus, no objection can be predicated on the aforesaid ground. However, we are of the opinion that the white bra is not admissible and the state need not allow an inspection of it as the evidence shows conclusively that Mrs. Jones wore a blue bra. The Defendant himself so testified. The blue bra will likewise be inadmissible because its seizure was violative of the Fourth Amendment. However, Mrs. Sanders and Janet Daniels may testify concerning it (the bra) because their knowledge of it was not acquired as a result of the unconstitutional invasion and seizure.

The final question is: Was the defendant entitled to a directed verdict on the ground that there was not sufficient evidence to make a jury issue as to his guilt?

In summary, the proof showed that Defendant’s wife was brought home by some men sometime between 1:00 and 3:30 A.M. on Sunday. Defendant contends that she was drunk and fell into the doorway and thereafter fell several times. Defendant also contends that she was drunk before he went to bed the night before. The Defendant is contradicted in each of these contentions. The medical evidence justified a finding by the jury that the subdural hematoma, from which the deceased died, was the result of recent blows to the head and face. Defendant concealed from a cousin the fact that the deceased was in the house; he told the cousin that she had walked away. The blue dress, which was found by the deceased’s sister on Monday at noon, thereafter disappeared, and parts of it were found partially burned near Defendant’s home. The jury was justified in rejecting Defendant’s theory that the bruises, about the face and head of the deceased, were caused by repeated falls after she came home on Sunday morning. There was proof that the deceased was not drunk when she arrived home, and Defendant’s testimony — that she was drunk, was passed out or was sleeping — could reasonably have been rejected by the jury. His testimony that he did not seek medical service for the deceased because he thought she was sleeping off one of her “drunks” could have also been reasonably rejected by the jury as incredible. It will be recalled that when the Defendant went to work sometime after 5:00 A.M. on Monday the deceased was lying on the floor and had been there, according to Defendant, since 4:00 A.M. Sunday.

We think this is a fairly strong circumstantial evidence case which presented a jury issue, and this is true even when considered without the aid of the evidence improperly admitted.

For the several errors herein stated, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

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


text:
    J. B. WOMACK CONSTRUCTION COMPANY, INC. and The Western Casualty and Surety Company v. LAWS CONSTRUCTION COMPANY, INC.
    No. 48664.
    Supreme Court of Mississippi.
    April 20, 1976.
    George G. Williamson, Edward A. Williamson, Mendenhall, for appellants.
    Carter, Mitchell & Robinson, Robert W. Graves, Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

AFFIRMED.