author: INZER, Justice,

text:
    Jan Lynn Y. MAGEE v. Joe MAGEE.
    No. 48339.
    Supreme Court of Mississippi.
    Oct. 13, 1975.

      Mounger & Mounger, Tylertown, for appellant.
    Ratcliff & Morgan, McComb, for appel-lee.
    Before PATTERSON, INZER and WALKER, JJ.
   INZER, Justice,

This is an appeal by Jan Lynn Y. Magee from the decree of the Chancery Court of Walthall County modifying a decree relative to the custody of Sharon Denise Ma-gee, a girl, five years of age, so as to award the custody of the little girl to the father Joe Magee. We reverse and render.

The record reflects that appellant and appellee were formerly man and wife. To their union were born three children, David Allen, age 15, Donald Ray, age 9, and Sharon Denise, age 5. The parties were divorced by a decree of the Chancery Court of Walthall County rendered on November 15, 1973, and by the ter'ms of this decree, the mother, appellant1 here, was awarded custody of the three children with the right of appellee to have them visit with him every other weekend. He was required to contribute $150 per month to help support the children.

Two days after the divorce was granted, appellee married his present wife, Wilma Magee, and they reside near Summit in Pike County. His present wife has two children by a former marriage. On March 29, 1974, appellee filed a petition to modify the former decree so as to award him the custody of David Allen and Sharon Denise. The petition alleged that there had been a change in circumstances because the mother of the children had been for the past two or three weeks living openly with a man to whom she was not married and she had carried on unlawful sexual intercourse with the man to which the children had been exposed. It was alleged that this conduct was such as to render the mother unfit to have the custody of the children and appellee had a fit, proper and suitable home in which to rear the children.

Appellant answered the petition and denied that there had been any change of circumstances since the divorce decree, except as to financial need due to the rise in living expenses. She denied the allegations of the petition relative to her conduct. She charged that the child Donald Ray was then and at the time of the divorce a retarded child and was attending the State School at Ellisville and that the father should be required to pay his room and board at the school. She also charged that the petitioner should be required to pay her an attorney’s fee and the costs.

The only evidence tending to show any misconduct on the part of the appellant was the testimony of appellee, his present wife, and David, the fifteen year old son.

The only thing appellee knew of his own knowledge relative to any misconduct on the part of his former wife was that on March 25, 1974, he tried to reach his son by telephone at their apartment. He testified that he called several times and received no answer. The last time he called was about 11 p.m. and when he received no answer, he, his present wife, and another lady drove to Tylertown. He said he found appellant’s car parked in front of Evon Harvey’s home where he thought it would be. They watched the car until about 12 o’clock and then called the apartment again and no one answered. They then watched the car until about 2 a.m. and it was still parked in front of Harvey’s home and all the lights were out in the house. He said that later he asked appellant about her relations with Mr. Harvey and she told him that they were married, but when he checked, he found out they were not married.

His present wife testified to the same facts relative to going to Tylertown, except she testified they first went to appellant’s apartment and no one was there.

David, the fifteen year old son, was called as a witness by appellee. Because of the rather unusual circumstances relative to his testimony, it will be detailed to some extent. David testified that his mother had told him that she and Mr. Harvey were married and he thought they were married. Counsel for appellee then asked him if he remembered discussing the matter with him in his office shortly after his birthday and David replied, “Yes, sir.” When asked if he remembered telling him that he, his mother, and sister had stayed overnight at Mr. Harvey’s, David said he told him that he and his sister stayed a part of the time. When asked about what he said about his mother staying there overnight, David said he told him that she stayed there a part of the time, but not overnight. Counsel for appellee then replied, “I am not talking about what you told me today, I’m talking about what you told me in my office.” At this point, appellant objected to appellee impeaching his own witness. Although counsel for appel-lee did not claim surprise, he insisted that he had the right to cross examine the witness because he had made a statement in his presence and in the presence of his client to which he was now testifying differently. The court ruled that under the circumstances, he would allow counsel to cross examine his own witness as an adverse witness. On cross examination David admitted that he told the lawyer in the presence of his father that he, his mother, and little sister' spent the night at Mr. Harvey’s house and that he and his sister slept in opposite bedrooms and his mother slept in the bedroom with Mr. Harvey. He also admitted that he told the lawyer that Mr. Harvey had come to his mother’s house and stayed there overnight. David was then asked if what he had told the lawyer in his office was true, and he replied that it was not and that he had lied. When asked why he had lied, David replied he did not know. When asked if he wanted to, continue to live with his mother, he replied that he did.

On further examination, David testified that his mother had never spent the night with Mr. Harvey, that he had never seen his mother do any immoral act, and that she had been a good mother to him and his little sister. He said he was afraid of his father because his father had struck him in the stomach with his fist about two years before and he had been afraid of him ever since. He also testified that when his father took him to the lawyer’s office, his father told him to tell the lawyer that they had been staying at Mr. Harvey’s house and that his mother had told him that they were married. He said because of his fear of his father, he had to give answers to questions that he knew were not true and that is what occurred in the lawyer’s office. He also testified that his father’s lawyer had told him that his statements in his office had been taped and that his father told him that they were going to use the tapes against him.

In this connection, the record reflects that counsel for appellee did have some tapes on the table in front of him in the courtroom, but it developed that these tapes were blank tapes. Apparently, their purpose was an attempt to influence David to testify to the same thing that he had told in the lawyer’s office. However, throughout his testimony under oath, David maintained what he had said about this mother and Mr. Harvey was not true, and he had lied, to the lawyer. He also testified that no one had tried to influence him or promised him anything to testify as he did in court.

Appellant was called as an adverse witness and she testified that she met Mr. Harvey on about the first of February and had dated him since that time. She said that Mr. Harvey had formerly been married and had a seven year old daughter who lived with him and she had allowed her daughter to go to Mr. Harvey’s home and spend the night with his little girl and the Harvey child had spent thq night in her home. She denied that she represented to her son that she and Mr. Harvey were married. She also denied that she told Mr. Magee that she and Harvey were married. She said he asked her if she and Harvey were married and she told him that they might be or might not be, but in any event, it was none of his business. She denied that she had ever spent the night in Mr. Harvey’s home, or that he had spent the night in her home. She denied that she had ever had improper relations with Mr. Harvey at any time or place. She did admit that she had gone on camping trips over the weekend with Mr. Harvey when the children were with their father. She said this was with a group of people and nothing immoral occurred on these trips. When asked on cross examination about her car being at Mr. Harvey’s on the night of March 25, she said it probably was, but she was not at his house on this night. She could not at this time explain why her car was there. Later when recalled on direct examination, she said she did remem; ber that this was David’s birthday and Mr. Harvey came to the birthday dinner that night. She did not know how he got to her home, but she let him drive her car to his home.

Mrs. Ruby Brown, who occupies the other side of the duplex apartment where appellant had lived for the past nine months, testified that she saw appellant and the children every day and that the children were well cared for and happy. She said the appellant was a good mother and she took the children to church when they were with her on Sunday. She prepared good meals and looked after the children’s every need. She testified that she stayed home all the time and she knew that Mr: Harvey had never spent the night in appellant’s apartment because there was a door between her apartment and appellant’s which she had only to open to enter Mrs. Magee’s apartment and if any man had been there at night, she would have known it.

Mr. Jewell Harvey, the father of Evon Harvey, testified that he lived next door to his son with just a garden between their houses, and although appellant had been to his home and his son’s home, he knew she had never spent the night in his son’s home.

The chancellor found from this evidence that appellant had been guilty of adultery or improper relations with Mr. Harvey to which the little girl had been exposed and it was for the best interest of the little girl for her custody to be placed with her father with the right of the mother to have the child visit with her two weekends out of each month from Friday afternoon until Sunday afternoon. The chancellor also found that since the divorce the father had remarried and had a suitable home for the care of the child. The chancellor acceded to the wishes of David the fifteen year old son to continue to live with his mother and allowed him to remain in her custody.

The effect of this holding was to leave the custody of the two boys, David and Donald Ray, with the mother and the little girl in the custody of the father. For some unexplained reason the father did not seek the custody of Donald Ray who is a retarded child and in the State School at Ellisville, but apparently was content to leave his custody and responsibility with the mother.

The principal contention of appellant is that the evidence is not sufficient to support the finding of the chancellor that appellant had been guilty of immoral conduct. Consequently, it is argued that there was no showing of a material change of circumstances which would justify a modification of the original decree awarding appellant custody of her five year old child. Wrapped up in this contention is an assignment of error that the chancellor was in error in allowing appellee to impeach his own witness. We need not pause to explore this assignment of error for the reason that assuming this action was proper, the evidence is not sufficient to support the finding of the chancellor that appellant had been guilty of improper relations with Evon Harvey to which the little girl had been exposed.

When appellee called his son David as a witness, he vouched for his credibility and ordinarily would be bound by his testimony. When David testified contrary to what he had told appellee’s attorney, in order not to be hound by his testimony, ap-pellee was allowed to impeach his own witness. This he effectively did and destroyed his credibility by showing he had made a statement contrary to the evidence he gave in court, but this does not mean that the out-of-court statement became evidence on its merits or had any probative value. It was only admissible for consideration, on the question of credibility of the witness. The rule seems to be universal that the impeaching testimony does not establish or any way tend to establish the truth of the matters contained in the out-of-court contradictory statement.

Absent the out-of-court unsworn statement which David admitted he made to appellee’s lawyer and which is not evidence in this case, the evidence is not sufficient to establish that appellant has been guilty of immoral conduct. What we have is that her car was parked in front of Harvey’s house on one occasion until at least 2 a. m., and that she was not at her apartment on that night until at least after midnight. There is proof that she told ap-pellee and David that she and Mr. Harvey were married when in fact she was not married to Harvey. There is also her admission that she had dated Harvey and had gone with him on weekend camping trips with a group of people at a time when the children were with their father. She denied that she had ever had improper relations with Harvey or anyone else.. There is no proof that appellant was living openly with Harvey as charged or that she had ever spent the night in bed with him or any other man. Appellee relies entirely upon circumstantial evidence to establish that appellant has been guilty of immoral relations with Harvey.

Rodgers v. Rodgers, 274 So.2d 671 (Miss.1973), involved a similar charge against the mother of a small child. The evidence relied on to prove the charge was circumstantial. We stated the rule as follows :

In order to establish adultery or fornication by circumstantial evidence, it is not sufficient that the evidence raise an inference of guilt, but it must be strong enough to lead to guilt as a satisfactory conclusion. In order to establish by circumstantial evidence that appellant was guilty of immoral relations with men as alleged in the petition, the burden was upon petitioners to show by clear and convincing evidence both the adulterous inclination and a reasonable opportunity to satisfy the inclination. (274 So.2d at 673).

The evidence in the case before us does not meet this test. There is nothing in the record to show any adulterous or immoral inclination on the part of the appellant. The evidence falls far short of being clear and convincing that appellant had been guilty of conduct that would render her unfit to have the custody of her little girl.

There is no charge that appellant had neglected her child or that she did not properly care for her. The proof showed that she had been a good mother and the chancellor was manifestly wrong in holding that she had been guilty of immoral conduct to which the child was exposed.

Appellant also assigns as error the failure of the trial court to require appellee to pay her a sufficient amount to pay her attorney for representing her in this case. Insofar as we can ascertain from the record, the chancellor did not pass upon this question, since it is not mentioned in the opinion or in the decree. Consequently, this cause will be remanded for the purpose only of a determination of this question. In the event the chancellor determines appellant was entitled to a fee to pay her attorney for representing her in the trial court, the amount will be fixed and an additional amount of one-half of the amount fixed will be assessed against appellee for the services of her attorney in this Court.

For the reasons stated the decree appealed from will be reversed and the decree entered here reinstating the decree of November 15, 1973, in its entirety. The cause will be remanded for the limited purpose of deciding the question relative to attorney’s fees.

Reversed and judgment here for appellant and remanded.

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


source: Caselaw Access Project

author: GILLESPIE, Chief Justice.

license: Public Domain

text:
    UNIVERSAL MANUFACTURING CORPORATION v. Charles R. BRADY, Jr., Chairman, and Mississippi State Tax Commission.
    No. 48312.
    Supreme Court of Mississippi.
    Oct. 6, 1975.
    Butler, Snow, O’Mara, Stevens & Can-nada, D. Carl Black Jr., Alan W. Perry, Jackson, for appellant.
    Joe D. Gallaspy, James H. Haddock, Wilson E. Hodge, Jackson, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   GILLESPIE, Chief Justice.

This is an appeal by Universal Manufacturing Corporation of Mississippi, a domestic corporation (the Mississippi Corporation) from a decree of the Chancery Court of Hinds County confirming an order of the State Tax Commission making an assessment of additional income taxes for the years 1969, 1970 and 1971.

All of the outstanding common stock of the Mississippi Corporation was owned by Universal Manufacturing Corporation, a New Jersey Corporation (the New Jersey Corporation) during the years involved in this case. The New Jersey Corporation was engaged in the manufacture and distribution of electrical equipment, and operated in several states. The New Jersey Corporation paid income taxes to the State of Mississippi for the years 1969, 1970 and 1971, based on a formula as provided in Regulation 1.9220-12(7) (c) of the Income Tax Law, Rules and Regulations promulgated by the State Tax Commission. This formula was promulgated under the authority of Mississippi Code Annotated section 27-7-23(1)(c) (1972). This section of the code is applicable only to foreign corporations or individuals, partnerships, trusts or estates not residents of the State of Mississippi.

The Mississippi Corporation operated only in the State of Mississippi, and its entire business consisted of assembling component parts furnished by the New Jersey Corporation into electrical ballasts, which were then transferred to the New Jersey Corporation. The ballast is one of the parts of neon lighting equipment.

The books and records of the Mississippi Corporation were kept at Paterson, New Jersey, by the New Jersey Corporation. The New Jersey Corporation exercised control over, and furnished advice and services to the Mississippi Corporation. In order to comply with the tax laws of the State of Mississippi, it was necessary for a reasonable compensation to be established for the work performed by the Mississippi Corporation. The method selected was to guarantee the Mississippi Corporation a fixed profit equal to one percent of the finished electrical units manufactured by the Mississippi Corporation, and the books and records of the two corporations were set up on this basis. This profit was used as the gross income of the Mississippi Corporation for the payment of income taxes to the State of Mississippi for the three years in question, and taxes were paid accordingly for 1969, 1970 and 1971.

The question is whether the State Tax Commission was authorized to adopt an apportionment formula in assessing the Mississippi Corporation with additional income taxes for the years 1969, 1970 and 1971. ,

The statute defining gross income for income tax purposes is Code section 27-7-15, entitled “Gross Income Defined.” Subsection (a) states what items are included in the term “gross income.” Subsection (b) is as follows:

(b) In determining gross income, as. regards sales or exchanges from one to another of affiliated companies or persons or under other circumstances where the relation between the buyer and seller is such that gross proceeds from the sale or the value of the exchanges are not indicative of the true value of the subject matter of the sale or exchanges, the commissioner' shall prescribe uniform and equitable rules for determining the value of the gross income, gross sales or exchanges corresponding as nearly as possible to the gross income or the gross proceeds from the sale of similar products or property of like quality or character by other taxpayers where no common interest or relationship exists between the buyer and seller, but otherwise under similar circumstances and conditions.

Prior to December, 1971, the regulation of the State Tax Commission applicable to the above subsection (b) was Article 72 of the 1966 Rules and Regulations of the State Tax Commission. That article is as follows:

Article 72. Sales or Exchanges by Affiliates — -Section 7(b) of the Act, provides for the regulation of transactions between affiliated persons or companies, or corporations, and is intended to provide for an inclusion in gross income the fair market or true value of such sales or exchanges, and such transactions shall give effect to the true or fair market value.

In December, 1971, the State Tax Commission adopted Regulation 1.0220-08(44). That regulation replaced Article 72 of the 1966 Rules and Regulations and undertook to prescribe a formula for determining the gross income of affiliated companies. It authorizes,

[T]he Commissioner to require the consolidation of income of all such affiliates and then proceed to compute the entire net income in accordance with the provisions in the statute, which relates to apportionment of income within and without the State. The tax imposed by this law shall apply to the correct apportioned income of all affiliates as consolidated.

The taxes in question were assessed retroactively in accordance with the latter regulation, the additional assessment being dated January 4, 1973.

Code section 27 — 7—15 (b) authorizes a tax only on the income of the Mississippi Corporation. The New Jersey Corporation could sustain either a profit or loss on all its operations elsewhere and the tax due by the Mississippi Corporation would not be affected. The statutory basis for income taxes of the Mississippi Corporation was its gross income, and its gross income was the “true value” of the services it performed for the New Jersey Corporation. The statute is not ambiguous. The Tax Commission could not lawfully substitute for the statutory method of determining gross income an apportionment formula that included the income of the New Jersey Corporation. A regulation that is repugnant to the statute is void. Crosby v. Barr, 198 So.2d 571 (Miss.1967).

We hold that the part of Regulation 1.-9220-08(44) authorizing the Commissioner to consolidate the income of a resident corporation with that of an affiliated foreign corporation and apply an apportionment formula for income tax purposes is void. It follows that the assessments of additional taxes in this case are invalid.

There is no necessity to discuss the other arguments made by the Mississippi Corporation.

The decree of the chancery court is reversed and judgment entered here invalidating the assessment.

Reversed and rendered.

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


author: RODGERS, Presiding Justice:

text:
    Erby Lee BUTLER v. STATE of Mississippi.
    No. 48706.
    Supreme Court of Mississippi.
    Oct. 13, 1975.

      Tucker & Cathings, Patricia A. Cach-ings, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., and Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, SUGG and BROOM, JJ.
   RODGERS, Presiding Justice:

The appellant was indicted, tried and convicted for the crime of murder in Harrison County, Mississippi, by the Circuit Court of Harrison County. He was sentenced to life imprisonment in the state penitentiary. From this judgment and sentence of the trial court he has appealed to this Court.

He now contends that he did not get a fair trial in the circuit court, and that this Court should grant him a new trial for the reasons hereafter set forth.

It is first contended that the trial court committed reversible error in .failing to grant the appellant a change of venue to another county away from Harrison County, because of the alleged prejudice engendered by the notoriety and animosity caused by the alleged crime.

We find no merit in this complaint for several reasons. First, the defendant offered no sworn evidence to support his motion for a change of venue as is required by Mississippi Code Annotated Section 99-15-35 (1972). See Fabian v. State, 267 So.2d 294 (Miss.1972); Thompson v. State, 231 Miss. 624, 97 So.2d 227 (1957). Second, if the defendant had offered proof on his motion, the state would very likely have offered evidence to the contrary. In any event, however, the issue was within the sound discretion of the trial judge. Myers v. State, 268 So.2d 353 (Miss.1972); Parks v. State, 267 So.2d 302 (Miss.1972); Slyter v. State, 246 Miss. 402, 149 So.2d 489 (1963). There is nothing in the record in this case to show that the trial judge abused his discretion.

It is next contended that the trial judge erred in refusing to consolidate “all three victims since the court allowed testimony and evidence of the other victims to be given at the trial of the third victim.” Apparently, the appellant means that the three cases for the death of three persons should have been consolidated into one charge of murder since all of these people were murdered the same date by the same person.

In the case of Ford v. State, 226 So.2d 378, 381 (Miss.1969), we recognized the rule that criminal cases could be consolidated “ ‘when a single unlawful act results in the killing of more than one person, each homicide constitutes a separate offense . . . ’ ” and said that it was within the sound discretion of the trial judge as to whether or not he would consolidate them on the motion of the defendant.

It is true that one may be indicted for a double murder in one count of an indictment where the homicides were the result of one single act [Wilkinson v. State, 77 Miss. 705, 27 So. 639 (1900)], but one act does not mean separate homicides occurring by different acts. The killing of three persons one after the other could not have been consolidated into one charge without violating the rule that a defendant can only be charged and tried for one crime at a time. 27 Am.Jur. Indictments and Information § 124, at 683 (1940).

The appellant contends that it was reversible error for the state to show pictures and evidence of other persons murdered at the time the defendant was charged with having killed a named victim. The general rule is, of course, that evidence of other crimes is not admissible on the trial of a defendant for a specific charge laid in the indictment. There are, however, numerous exceptions to this rule, one of which is that such crimes are admissible in evidence against the accused where they are a part of the res gestae. Other exceptions are enumeratd in Brooks v. State, 242 So.2d 865 (Miss.1971).

In the instant case, the murdered victims were scattered about on the floor within a few feet of each other, their blood was spattered on the floor and walls—all of which was obviously a part of the res ges-tae, and such evidence was admissible in the trial.

The contention of the appellant that one of the state’s witnesses was in the courtroom during the trial after the rule had been invoked, and that this constituted a reversible error, is not well taken because this is a procedural matter, the enforcement of which is within the sound discretion of the trial judge. Cannon v. State, 190 So.2d 848 (Miss.1966); Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965) ; Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961); Triplett v. State, 230 Miss. 707, 93 So.2d 654 (1957); Faust v. State, 221 Miss. 668, 74 So.2d 817 (1954); Wallace v. State, 203 Miss. 504, 35 So.2d 703 (1948); Crockerham v. State, 202 Miss. 25, 30 So.2d 417 (1947); Thomas v. State, 103 Miss. 800, 60 So. 781 (1912); Taylor v. State, 30 So. 657 (Miss.1901).

The trial court did not abuse its discretion under the facts shown in this case.

The appellant contends that the colored pictures of the scene of the crime and the bloody condition of the victims were prejudicial as to the defendant and prevented him from receiving a fair trial.

We said in the case of May v. State, 199 So.2d 635 (Miss.1967), that the fact that pictures of a homicide victim might arouse the emotions of the jurors does not of itself render them incompetent in evidence, provided, of course, they serve a legitimate evidentiary purpose. We have from time to time reiterated this rule [Ford v. State, 227 So.2d 454 (Miss.1969)]. The mere fact that the pictures in this case showed a scene of horror did not prevent them from being of value as evidence.

The facts in this case portray one of the most horrible, deliberate, callous butcheries the writer of this opinion has been required to examine during a long career of observing criminal cases.

There is no reversible error in the record of this case, and it is, therefore, affirmed.

Affirmed.

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

      . “On satisfactory showing, in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, supported by the affidavits of two or more credible persons, that, by reason of prejudgment of the case, or grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case,' as may be proper.” Miss. Code Ann. § 99-15-35 (1972).


author: WALKER, Justice:

text:
    Paul E. DAVIS v. STATE of Mississippi.
    No. 48642.
    Supreme Court of Mississippi.
    Oct. 13, 1975.

      George F. West, Jr., Natchez, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   WALKER, Justice:

The appellant was indicted and tried for murder in the Circuit Court of Adams County, Mississippi. From a conviction of manslaughter and a sentence of twenty years in the state penitentiary, he prosecutes this appeal.

Shortly after midnight on the morning of July 27, 1973, James Thames, a service station attendant in the City of Natchez, Mississippi, was shot during an armed robbery attempt by an assailant with a stocking pulled over his face and who was dressed in a light yellow shirt and light blue pants using a polka-dotted tie for a belt. During the course of the investigation by the authorities that night and the next morning, a brown stocking was found in the Abbott Street area not far from the service station and a yellow áhirt and blue pants with a polka-dotted tie in the belt loops were found hidden in a' clump of weeds approximately a block and a half from the scene of the killing.

The appellant’s primary assignment of error is that the lower court erred in allowing Sheriff William T. Ferrell to testify with reference to oral statements made by the appellant who denied killing Mr. Thames, but admitted that the clothing found by the police belonged to him; and that the appellant had worn them on the night of July 26 and had hidden them in the weeds.

In this regard appellant argues that before the oral statements of an accused are admissible in evidence, there must be “written proof,” signed by the accused, that the statements were voluntarily and freely made; and, he further argues that when the accused is a sixteen-year-old boy a heavier than ordinary burden rests upon the state to demonstrate that the accused knowingly waived his privileges against self-incrimination and his right to counsel.

The appellant cites no authority, nor are we aware of any which requires that a waiver of an accused’s constitutional privileges against self-incrimination, right to counsel, etc. must be in writing and signed by the accused before inculpatory statements made by him and otherwise freely and voluntarily given are admissible in evidence. Such a statement is admissible provided the accused has been afforded the protection of the Miranda warning and he thereafter knowingly and intelligently waives his rights and freely and voluntarily makes the statement.

With reference to the second portion of appellant’s assignment of error concerning the waiver of constitutional safeguards by a sixteen-year-old boy, this Court has said in Jenkins v. State, 214 So.2d 470 (Miss.1968) :

Miranda requires meaningful advice to an unlettered and unlearned person, in language which he can comprehend and on which he can knowingly act. The crucial test is whether the words used by the officers, in view of the age, intelligence and demeanor of the individual being interrogated, implied a clear understanding of all of his rights. The court must then determine objectively whether the words used by the interrogating officers were sufficient to convey the implied warning. Fritts v. United States, 395 F.2d 219 (5th Cir.1968); Coyote v. United States, 380 F.2d 305 (10th Cir.1967). (214 So.2d at 472).

There is nothing in this record to indicate that the appellant was other than of normal intelligence since he did not take the stand at any stage of the proceedings. The only thing in this record which would reflect on his ability to understand and comprehend is the report of the medical authorities at the Mississippi State Mental Hospital where appellant was sent, of his owfl motion, which reads in part:

We found no evidence whatsoever that this young man is psychotic (insane). He is considered entirely competent, in every respect, to stand trial, to collaborate and cooperate with his Counsel, to testify in his own behalf, and to otherwise participate in his own defense.

Moreover, the record discloses that an oral tape recording and video tape recording were made df the appellant’s interrogation by the investigating officers and these tapes were máde available to the appellant and his counsel prior to trial. We must assume therefore, that these tapes did not contain objectionable matter with reference to the conduct of the interrogation since they were not offered into evidence and no specific complaint was directed thereto by appellant.'

We have carefully reviewed the testimony of Sheriff William T. Ferrell and Captain Bahin, Chief of Detectives of the Natchez Police Department, who testified as to how they, on two different occasions, advised the appellant of his Miranda rights and are of the opinion that the officers advised appellant in clear, plain and uncomplicated terms which an average sixteen-year-old youth could understand and upon which he could knowingly act.

We have considered the appellant’s remaining assignment of error that he was entitled to a peremptory instruction and find it to be without merit. The evidence for the state showed that the appellant was identified as the assailant by a witness who testified that he saw him running from the service station on the night of the fatal shooting wearing a yellow shirt, blue pants and polka-dotted tie around his waist. Clothes meeting this description, with blood on them, were found in the vicinity of the service station the morning after the killing took place. Although appellant denied killing Mr. Thames, he admitted to being in the vicinity of the service station at the time the crime occurred and to having worn the above described clothes on the night of the shooting.

We are of the opinion that the jury had ample evidence upon which to base its verdict.

The jury is the judge of the credibility of the witnesses and the weight and worth to be given to their testimony, and was not required to believe appellant’s witnesses who testified that one Felton Slack had told them that he had killed the deceased. Ainsworth v. State, 304 So.2d 656 (Miss.1974); McLelland v. State, 204 So.2d 158 (Miss.1967); Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959).

This case was vigorously prosecuted by the state and ably defended by appellant’s attorney who diligently protected appellant’s rights at every stage of the proceedings.

For the reasons given above, we are of the opinion that the judgment of the lower court should be affirmed.

Affirmed.

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


author: BROOM, Justice.

text:
    Carl E. LOGAN v. William E. McGEE et al.
    No. 48362.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    Johnny N. Tackett, Aberdeen, for appellant.
    David B. King, Aberdeen, for appellees.
    Before RODGERS, SUGG and BROOM, JJ.
   BROOM, Justice.

An easement acquired by adverse use for over eighty (80) years across appellees’ land was asserted by appellant, Logan, in his bill filed in the Chancery Court of Monroe County, Mississippi. He prayed that the appellees be enjoined from interfering with his use of the subject roadway. The chancellor decreed that Logan and his predecessors acquired an easement by prescription. He also decreed that the easement did not run with the land but that it was a personal right limited to Logan and his immediate family.

The chief issue is whether Logan’s prescriptive right-of-way easement is merely personal or whether it will run with the land.

No testimony, but only the pleadings, opinion of the court, and decree appear in the record. The trial court found that the roadway had been used as a family road by Logan and his family “since the turn of the century.” -We think the chancellor erred in so limiting the prescriptive right that it would not run with the land, and would be only for the use and benefit of the appellant and his family. Generally an easement is an interest in the land in and over which it is to be enjoyed and is distinguishable from a license which merely confers a personal privilege to do some act or acts on the land. An easement may be created by grant, implication, or prescription. The easement in this case was created by prescription. The creation of an easement by implication or prescription presupposes a grant. 25 Am.Jur.2d Easements and Licenses § 3 at 419 (1966).

Flanagan v. Branton, 224 Miss. 214, 79 So.2d 823 (1955), held that a prescriptive right to an easement is equivalent to a deed conveying such right, and that proper acquisition of the right is presumed from adverse and continuous enjoyment of a right-of-way for the ten year statutory period. If an easement by prescription is equivalent to the conveyance of such right by deed, then it follows that such an easement will run with the land. In Browder v. Graham, 204 Miss. 773, 38 So.2d 188 (1948), Browder purchased a dominant tenement and it was ruled that “the conveyance to him of the dominant tenement carried with it the appurtenant easement.” The acquisition of an easement by adverse user for the statutory time is no less efficacious than a deed (properly drawn and delivered) in investing such user with full rights to use, enjoy, own and convey such an easement.

Though the appellant does not contend that the roadway in question is a public road, he is correct in his contention that the prescriptive right granted him by the court should run with the land. Accordingly, the decree appealed from must be reversed to the extent that judgment will be entered here modifying the chancellor’s decree consistent with this opinion.

Reversed in part and decree of lower court modified.

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


author: SMITH, Justice.

text:
    The MAGNOLIA HOSPITAL v. Terry Glen MOORE.
    No. 48054.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    Rehearing Denied Sept. 9, 1975.

      Sharp & Fisher, Corinth, for appellant.
    Charles R. Wilbanks, Corinth, for appel-lee.
    Before PATTERSON, SMITH and BROOM, JJ.
   SMITH, Justice.

This is an appeal by Magnolia Hospital from a judgment for $75,000 entered against it by the Circuit Court of Alcorn County in a malpractice suit brought on behalf of Terry Glen Moore, a minor, against the hospital and Dr. D. W. Ham-rick. The suit sought damages for personal injuries alleged to have been sustained by plaintiff in the course of a tonsillectomy performed at the hospital by Dr. Ham-rick. The gravamen of the complaint in the declaration is reflected by the following statement in the declaration: “Said employees of the Magnolia Hospital, together with Dr. D. W. Hamrick, carelessly and negligently strapped the plaintiff to the operating table by strapping his legs below the knees, and tightening the straps to such a degree of tightness, that the strap severed the peroneal nerve in the plaintiff’s left leg.”

The trial was concluded by the submission of the case to a jury which returned a verdict exonerating Dr. Hamrick but awarding plaintiff $75,000 against Magnolia Hospital. It is from the judgment against it, entered pursuant to that verdict, that Magnolia Hospital has appealed. Plaintiff has not appealed from the verdict and judgment for Dr. Hamrick nor has plaintiff cross-appealed as to rulings of the trial court adverse to plaintiff.

Terry Glen Moore, the plaintiff, was 7 years old at the time of the operation on June 7, 1968. The trial took pla.ce 4 years later, when he was 11.

At 8:45 a. m. on the morning of the operation, the patient was given one grain of nembutal to induce drowsiness and 1/300 grain of atropine to slow the heart and suppress secretions from the nose and throat. Shortly thereafter, he was transported on a rolling stretcher from his room to the surgical suite. At that time his condition from the medication administered was described as “groggy.” An examination was made of the patient’s heart, chest, lungs and throat. He was moved into the operating room designated for minor surgery and placed on the operating table. Present were Dr. Hamrick, a specialist in eye, ear, nose and throat and member of the Academy of Opthalmology and Oto-laryngology, who had performed some 5,000 tonsillectomies in his career; Dr. Hassel-tine, his assistant, a doctor with 25 years experience in the field; Mrs. Louise Ferguson, operating room supervisor, a graduate, registered nurse with 25 years experience as operating room supervisor; Mary Owens, a graduate registered nurse and a graduate of the University of Alabama School of Anesthesia, with 18 years experience as an anesthetist; Vennie Betts, scrub nurse, with 8 years experience, 4 in surgery, Nelsie Caise, circulating nurse, with 26 years experience; Mrs. Thomas Trantham, recovery room graduate nurse with experience in several hospitals in that capacity; and, Charles Brumley, attendant, with 4 years of college pre-med and 1 year of graduate work, with 1 year experience at the Magnolia hospital, handling an average of 70 patients each month.

There is no material dispute in the testimony of these people as to what occurred and what was done on the occasion of the tonsillectomy performed on Terry Glen Moore by Dr. Hamrick. It is undisputed that good medical practice requires the placing of a restraint strap across the legs of a patient about to undergo that type of surgery. The testimony is that this restraining strap was placed across the legs of the plaintiff above the knees after he had been placed upon the operating table in order to prevent his thrashing about during the operation and causing an injury to himself. The restraint strap is a fabric strap 67 inches long and 5 inches wide. As the patient lies on the operating table, the strap passes over his legs and over the sides of the table and is fastened under the table. This is the proper and necessary procedure according to generally accepted good medical practice. This fact is not disputed by Dr. Tutor, the only medical witness offered by plaintiff, who testified, however, that it was in keeping with good medical practice to place the strap either above or below the knees.

After plaintiff had been placed upon the operating table this restraining strap was placed across his legs above the knees by the attendant, passing across both legs, and was fastened under the operating table. The patient’s hands were then tucked under his body. When these things had been done the anesthetist proceeded to administer vinethene, a quick acting type of anesthetic that puts the patient to sleep within two or three minutes. From that point on a mixture of ether and oxygen is used. Dr. Hamrick, who had been outside “scrubbing up,” was notified that the patient was ready and entered the room. He tested the restraining strap, it was above the knees as usual, and found it to be of the proper tightness. Forty-five minutes later, the operation having been completed without incident, the patient was removed from the operating table and taken to the recovery room.

The testimony of the highly trained and experienced personnel who were present and participated on the occasion in question, was that, at every step, from his reception to his departure, plaintiff received every care and attention required or indicated by sound and generally accepted good medical practice.

There is no material factual issue as to this unless it can be said to have been created by testimony given by the 11 year old plaintiff as to his knowledge and recollections of the events which had transpired in the operating room 4 years before when he had been 7 years old.

Even discounting proof in the record that plaintiff’s intelligence and memory span were below normal, as well as his drugged condition when he entered the operating room, his testimony, offered to support the charge of negligence, is irreconcilably self-contradictory in its essential particulars. He testified at times, that he had asked Dr. Hamrick in the operating room (that being the only place the restraining strap was used) to loosen the strap “a bit.” Several other times he said that he had not seen Dr. Hamrick in the operating room at all. In answering interrogatories, (these were apparently answered by his father who was not present in the operating room), it was stated that a “strong, flexible material which looped around the arms and legs and was applied above the elbows on each arm and put below the knee on each leg.” Many important questions addressed to plaintiff himself, as a witness, brought no response of any kind, although they were repeated time and again, and question after question received the answer, “I don’t remember.”

The record of the testimony of plaintiff forces the inescapable conclusion that, after 4 years, actually he did not recall, if he ever knew, where or what strap or straps were placed upon him. Nor is it possible to reconcile his conflicting statements as to what happened in the operating room. But aside from the impossibility of reconciling the material conflicts in plaintiff’s testimony, the request of this young boy, if there was such a request, that ,the restraining strap be loosened a bit does not amount to proof that it was tighter than required by good medical practice.

The expert testimony of those in a position to know, was to the contrary.

Plaintiff returned no answer whatever to question after question and a very large percentage of those questions addressed to him relating to the placing of the strap were answered, “I don’t remember.” He said, at least once, that he did not know how the strap had been placed and explained this lack of knowledge by saying that he could not see so good. On cross-examination, he stated that he could not remember whether the straps were actually placed on him or not. The testimony of this witness is irreconcilably conflicting on the crucial point. It is contrary to the overwhelming weight of the credible evidence in the case and is incapable of supporting a finding that negligence or a departure from good medical practice on the part of the hospital employees or Dr. Hamrick caused a traumatic injury to the peroneal nerve of his left leg.

The only medical evidence offered by the plaintiff was given by Dr. Tutor. Several months after the tonsillectomy, Dr. Tutor had operated on plaintiff and found that the superficial peroneal nerve of the left leg was bound down with scar tissue over the head of the fibula, that the nerve was not severed, and he freed it from the scar tissue. He said ’'that the injury to the nerve was external, indicating “some sort of trauma to the nerve.” Dr. Tutor stated that there was no way to determine the particular trauma that caused the injury but, whatever it was, in order to cause the injury, it would have had to be of such force as would cause discoloration (bruising) and swelling in the area where the trauma occurred and that such swelling and discoloration would have been observable.

Moreover, according to Dr. Tutor it was his opinion that it would have been possible to have sustained the trauma, feel the pain and have a superficial bruise and swelling appear and have the bruise and swelling disappear in three days or a week and then a period of two weeks or so elapse before the scar tissue began to de velop or a deficiency began to develop in the neurological function (of the foot).

Dr. Tutor also testified that it was in keeping with good medical practice to place a restraining strap across the patient’s legs, either above or below the knees, during surgery. He said he had never performed a tonsillectomy and did not know whether the operation was done while a patient was sitting or lying down, as he had never observed a tonsillectomy performed. He added, however, that he thought most strapping was done below the knee and this also was in keeping with good medical practice. He said, and it appears to be conceded, that a strap placed above the knee would have been incapable of producing the injury.

Appellee’s injury involved the superficial peroneal nerve at a point below the left knee. According to Dr. Tutor, “It is probably the most commonly injured nerve in the lower extremity because of it being so superficial.”

In describing the vulnerability of the superficial peroneal nerve to injury the testimony of Dr. Tutor was as follows:

Q. Could this, could what you observed in this Terry Moore, the condition which you observed in his leg, could it have resulted from him bumping his leg against something, or something of that nature ?
A. Yes, sir. Any significant trauma to that particular area, the nerve being so vulnerable as it is to trauma could produce a, a foot drop. Yes, sir. I see it all time. In fact, we often see people that apparently get a foot drop simply from crossing their legs; that is, pressure of one leg on the other at this point of, of vulnerability of the peroneal nerve as it comes across the head of the fibula; and we often, or I do, often instruct a patient to try to remember not to cross his legs because of the likelihood of trauma.
Q. And could the injury that you observed in Terry Glen Moore come, could it have come from that source ?
A. It could have come from any trauma. Yes, sir.
Q. Then, from what you have said, the bumping the leg, crossing legs, or any number of things could have caused the onset of this condition equally as well as placing the strap on the legs ?
A. Yes, sir.

When Dr. Hamrick called at the plaintiff’s room later in the day on which the tonsillectomy had been performed, it is undisputed that he found the patient was having trouble with his foot. The coincidence that this manifestation of the consequences of a previous traumatic injury to the peroneal nerve followed the operation by only a few hours is cited as “proof” of causal connection. Dr. Tutor testified that the traumatic injury of the nerve would produce at the time of such injury a visible result consisting of swelling and bruising. The disability to the foot might ensue two weeks or more after these visible signs had disappeared. No bruising or swelling was apparent at the site of the alleged injury on the day of the operation. Moreover, because of the absence of the swelling and bruising, which Dr. Tutor said would necessarily occur, it is equally possible, to say the least, that a more remote injury caused the disability which only manifested itself coincidentally on the day of the operation.

The fact that impairment of the foot had actually become apparent on the day of the operation is not, under Dr. Tutor’s testimony, evidence of causal connection between procedures in the operating room and the basic traumatic injury which necessarily had preceded it. According to Dr. Tutor, the initial injury might have been sustained from any one of a number of causes, and there was no way to determine which of such causes had brought it about. Dr. Tutor also said that in the two weeks or longer period which might elapse between the original trauma (resulting from crossing one’s legs, etc.), and the consequent disability, the swelling and bruising might have disappeared, and the incident long since have been forgotten. Dr. Tutor stated: “And there is no way of knowing” what particular trauma had caused the injury.

Terry Cooper Moore, father of plaintiff, answering interrogatories which had in fact been propounded to his son, in reply to a question as to whether “there was any change in the physical appearance or color on any portion of the (Plaintiff’s) body included in the complaint,” said: “None noticed immediately after the operation.” Later, however, he undertook to say that he had noticed a small red mark on the side of plaintiff’s left leg. On cross-examination about this conflict in his statements he was asked: “Now, Mr. Moore, why, in answer to that question, did you not mention this redness that you knew about on the day following the injury at least? A. Well, in this particular case, it was very minor, just a little redness, could have been from lying on a sheet or something or other of that nature.”

There was no indication of any bruising or swelling, such as that described by Dr. Tutor and which he said would have occurred at the time of an initial traumatic injury severe enough to cause the condition of scarring which had been disclosed by the surgery performed by him.

It is contended by appellee that Dr. Tutor’s answer to a hypothetical question propounded to him is sufficient to support a finding that improper placing of the restraint strap “probably” had caused the injury. This proposition is based on the following question addressed to Dr. Tutor:

Q. And let us assume, Doctor, that the evidence as shown will show in this cause that this child was taken to the operating room; that the strap was placed on his, just below his knees; and at that time he complained of the straps hurting him; and then immediately after that he was put , to sleep. Would you have an opinion as to the probable cause of his injury?

Upon the basis of the data contained in the above question, plus a “history supplied” him, Dr. Tutor answered: “That it was the probable cause of it, the most likely cause of it, with the history as supplied me.” In Cates v. State, 171 Miss. 106, 157 So. 95 (1934), this Court stated the rule as to hypothetical questions addressed to expert witnesses thus:

Where hypothetical questions are resorted to in the examination of expert witnesses, they must be so framed as to fairly reflect facts either admitted or proved, otherwise the testimony drawn out by them can have no real value, but may do much harm in the decision of the case, it being held that before a witness will be allowed to give his opinion as an expert upon a state of facts, knowledge of which he derives from other witnesses, he must be put in possession of all the facts, as ascertained or supposed, on the question about which the inquiry is made, and that an opinion given upon a partial statement of the facts is inadmissible and of no value. (157 So. at 99).
Where facts are conflicting, the party producing expert witnesses may state facts in hypothetical questions in accordance with his theory, but is not authorized to omit undisputed material evidence bearing on the issue and calculate it (sic) to influence decision; but he must state the facts whenever they are not disputed. Cates v. State, 171 Miss. 106, 157 So. 95. [Mississippi Power Company v. Harrison, 247 Miss. 400, 152 So.2d 892, 900 (1963) ].

The assumption in the question, obviously based upon parts of plaintiff’s testimony, that a complaint was made or a request to Dr. Hamrick was made in the operating room to loosen the strap is not supported by credible evidence or evidence of any substantial probative value. Plaintiff’s testimony on this point is conflicting and the conflicts are incapable of being reconciled. Moreover, the test is whether what was done comported with generally accepted good medical practice. That it did is supported by the testimony of both Dr. Ham-rick and Dr. Tutor. A request by a child patient, even if made, that the restraint strap be loosened “a bit” because his leg hurt, is not evidence that it was, in fact, too tight by standards of good medical practice. There is no evidence that the strap was tighter than necessary or tighter than required by good medical practice or tight enough to cause injury to the pero-neal nerve.

The question as propounded contains insufficient data to form a basis upon which a medical expert could reach a trustworthy opinion, based upon reasonable medical certainty. It does not, in fact, call for an expert opinion based upon reasonable medical certainty. Dr. Tutor, like anyone else, may have formed some kind of “opinion”, but only opinions formed by medical experts upon the basis of credible evidence in the case and which can be stated with reasonable medical certainty have probative value. Moreover, it appears that the “history” mentioned by Dr. Tutor was given him by plaintiff’s father and included “facts” not in evidence and thus was not a proper consideration as a basis for arriving at an expert opinion. In Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky.1973), the Kentucky Court said:

It seems to us that there is a practical difference between subjective symptoms and a case history. It is one thing for a patient to tell a physician how he feels and where he hurts and another to tell him what has happened, either yesterday, last year or 10 years ago. Though both may be of equal importance to the physician, it is far easier for the patient to fabricate or embellish upon past facts than to feign existing symptoms. The doctor ordinarily is in a better position to assess the genuineness of the symptoms than he is to judge the accuracy of the history. It is our opinion that the law in this state goes quite far enough in permitting him to consider the subjective symptomatology displayed by one who is claiming or about to claim legal relief, and that for purposes of opinion testimony he should not be permitted to take into consideration the patient’s case history. We therefore conclude that objections to such testimony are well taken. (502 S.W.2d at 529).

Expert opinions may not be based on information or “histories” furnished to the expert by third persons. Dennis v. Prisock, 221 So.2d 706 (Miss.1969); Spears v. State, 241 So.2d 148, 149 (Miss.1970).

Moreover, it was necessary that these additional data, reflected by uncon-tradicted testimony, be included in the question and taken into consideration by Dr. Tutor in forming an opinion:

(1) There was no bruising (discoloration) or swelling following the operation at the site of the alleged traumatic injury; and

(2) The impairment of the use of the foot had manifested itself within a few hours after the operation.

In the light of Dr. Tutor’s testimony, these facts were indispensable to the formation of a valid or trustworthy medical opinion based upon reasonable medical certainty as to whether the original trauma had more probably occurred during the operation or at some time during the previous two weeks or so.

What was discovered at the hospital within hours after the completion of the operation was not evidence of the external trauma to the leg itself which, according to plaintiff’s medical expert, would consist of visible bruising and swelling at the site of the trauma, manifesting itself at the time and disappearing within two or three days. The testimony is that there was none. The disability of the foot noticed at that time was but a sympto'm of a previous traumatic injury to the leg involving the superficial peroneal nerve which might have occurred at any time during the previous two weeks or so which preceded the noticed impairment of the use of the foot.

Appellee suggests that-if the injury did not happen as alleged, that it was incumbent upon Magnolia Hospital to show how it did happen, and that unless this was done'the hospital is liable. This burden did not rest upon the hospital.

Negligence is not presumed, rather it is presumed ordinary care has been used. The person charging negligence must show that the other party, by his act or omission, has violated some duty incumbent upon him and thereby caused the injury complained of. .
[DeLaughter v. Womack, 250 Miss. 190, 208, 164 So.2d 762, 769 (1964) ] (Emphasis added).

The jury’s natural sympathies in the case may have found expression in its inconsistent verdicts whereby Dr. Hamrick was exonerated and a verdict was rendered against the hospital. Thus, it necessarily follows that the jury accepted Dr. Ham-rick’s testimony that he had tested the tightness and placement of the strap before beginning to operate and had found them proper but somehow found at the same time, as to the hospital, that it had been too tight.

In Elsworth v. Glindmeyer, 234 So.2d 312 (Miss.1970), it was said:

[A] jury verdict is no magic talesman or philosophers’ stone which can by its pronouncement per se change the base ore of impossibility into the royal metal of fact. A verdict does not by its utterance create that which cannot be determined rationally to have existed. A verdict cannot metamorphose an incredible assumption into a plausible fact worthy of being accepted as a reality.
(234 So.2d at 321).

In Elsworth, the Court set forth, among others, these principles:

1. [BJelievable or credible evidence in civil cases is that which is reconcilable with the probabilities of the case and that bare possibilities are not sufficient. .
2. Verdicts must rest on probabilities, not on bare possibilities. There is not capacity in any number of the former to create the latter. So the-person on whom the burden of proof rests to establish the right of a controversy, must produce credible evidence from which men of unbiased minds can reasonably decide in his favor.

(234 So.2d at 318).

In John Morrell & Company v. Shultz, 208 So.2d 906, (Miss.1968), plaintiff claimed to have suffered food poisoning from eating a potted meat product marketed by Morrell. Plaintiff’s doctor testified that, from the case history given him by plaintiff, it was his opinion'that the product had been defective and had caused her sickness. On cross-examination, however, he admitted that his conclusions were based on what plaintiff had told him and that her illness might have as easily resulted from some other cause. The doctor said plaintiff’s complaint was a common one, such as he saw every day in his practice, very much as Dr. Tutor said here: “Yes, sir. I see it all the time. In fact we often see people that apparently get a foot drop simply from crossing their legs. . ” In Morrell, this Court reversed, saying:

It is well settled in this jurisdiction that a verdict may not be based upon surmise or conjecture and that to prove a possibility only is insufficient to make a jury issue. The scintilla rule of evidence is not recognized within this state. See Berry v. Brunt, 252 Miss. 194, 172 So.2d 398 (1965), and the numerous cases therein cited to the same effect.
In reviewing the evidence in its best light for the plaintiff the proof amounts to no more than a scintilla that the plaintiff’s illness was caused by the potted meat and is insufficient, therefore, to support the verdict of the jury. The cause is reversed and rendered.
(208 So.2d at 907).

Plaintiff failed to meet the burden of proving (1) negligence or departure from good medical practices by hospital attendants, and (2) that any negligence or departure from good medical practices proximately caused or contributed to the injury of plaintiff. As said in Elsworth, supra, “A verdict does not by its utterance create that which cannot be determined rationally to have existed.”

The jury should have been peremptorily instructed to return a verdict for Magnolia Hospital.

Reversed and judgment here for Magnolia Hospital.

GILLESPIE, C. J., RODGERS, P. J., and INZER, ROBERTSON, SUGG and WALKER, J J., concur.


author: SUGG, Justice.

text:
    James SAMPLE v. STATE of Mississippi.
    No. 48435.
    Supreme Court of Mississippi.
    Oct. 20, 1975.

      Johnson & Walker, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, SUGG and BROOM, JJ.
   SUGG, Justice.

James Sample was convicted of manslaughter and sentenced to a term of fifteen years in the State Penitentiary by the Circuit Court of Holmes County.

Sample assigns eight errors which he contends require reversal of his conviction. Two assignments of error are combined and we will discuss only two additional assignments of error. The assignments of error are: (1) The trial court’s refusal to grant a continuance in order for Sample to retain private counsel denied him his constitutional right to effective legal counsel, and the trial court committed reversible error by failing to hold a hearing with respect to appellant’s motion for continuance, (2) the evidence did not establish corpus delicti because it did not exclude every reasonable hypothesis other than that of his guilt, (3) the court erred by granting State’s Instruction No. 7.

Sample was arrested on October 5, 1972 and shortly thereafter Calvin King was appointed to represent him. Sample told the court that he did not want King to represent him and in late October, 1972, he retained Andrew Gambriel as counsel. At the April 1973 term of court Sample petitioned for a continuance on the ground that Gambriel could no longer represent him. On April 19, 1973, a petition for a mental examination was granted by the court and the case was continued until the October 1973 term. Sample was returned to Holmes County from the Mississippi State Hospital at Whitfield on or about October 3, 1973, and his trial was set for October 23, 1973. On that date Gambriel informed the court that Sample no longer desired his services and wished to retain other counsel. The court released Gam-briel from the case, allowed Sample thirty days in which to hire counsel of his choice and granted a continuance until the next term. The next day Sample requested the court to appoint him an attorney from the Greenwood branch of Legal Services. On February 4, 1974, the court appointed John Barrett and Calvin King to represent Sample.

The attorneys met with Sample who informed them that he did not desire their services, but wanted other counsel. The court was immediately informed of this conversation but ordered the attorneys to represent Sample. The trial was set for April 25, 1974, and the two attorneys proceeded with the preparation of the case. On the day of trial, a motion was filed by John Walker, newly retained counsel for Sample, requesting a continuance until the October 1974 term so that he could prepare for trial. He set forth in the application for continuance that he was not prepared to represent Sample because he had been first contacted on April 22nd and retained on April 24th. The court denied the motion for continuance, but permitted Walker to make a statement into the record of the proof he would offer in support of the motion. The court proceeded to trial with Sample represented by Barrett and King. Walker did not participate in the trial.

After tíie jury was selected the court permitted Barrett to make a statement for the record. Barrett stated that he and King visitfed the defendant in the Holmes County jail shortly after their appointment on February 4, 1974. He said the defendant stated in general terms that he was innocent of the charges, but did not desire to go into any specific discussion for the reason he did not want Barrett and King to represent him. Sample said that he would arrange to have his own counsel. Upon being instructed by the court to prepare for trial, Barrett said that he and King, as best they could with the cooperation of the defendant, investigated the case and talked with witnesses whom they were able to locate from outside sources. He stated that they attempted to communicate with the defendant on the morning of the trial and the defendant stated: “It looks like they are going to try me anyway — y’all go ahead — I am not going to have anything to do with it.” He further stated that Sample would not converse with them during the selection of the jury because he did not know anything about any of the prospective jurors.

The court then noted the previous appointments of attorneys in the case and, with reference to the motion for continuance filed by Walker on that date, stated that the motion was filed too late and was therefore denied. The court then stated:

All right, now the Court proposes to proceed with this case and the Court proposes to let Mr. Walker come in here and make any statement that he wants to make for the record. Ask him if he will come in now.

Walker and Sample’s niece were permitted to come into chambers and Walker made the following statement:

BY MR. WALKER:
John L. Walker of the law firm of Johnson & Walker of Jackson, Mississippi would state that he was present in the court today and ready to have a hearing with respect to this motion for continuance, and at such hearing he would have offered as a witness in support of said motion Mrs. Ella Mae Sample, niece of the defendant James Sample, who would have testified that she contacted me on April 22 and further conferred with me on April 24 when I came to Lexington. At that time, I was retained as counsel to represent her uncle on the charges of murder pending against him in this court; that she would have further testified that prior to April 22 she was unable to retain counsel due to her financial situation, but on April 22 became able financially to obtain private counsel. Counsel would further offer as a witness in support of said motion the defendant,
James Sample, who would have testified as set forth in this affidavit affixed to the motion for continuance to the effect that he does not want counsel who has been appointed for him to represent him in this cause, and that there has not been effective communication between him and his present counsel so as to adequately represent him in this cause, in his opinion.
Counsel would also offer his own testimony to the fact that he was ready, willing and able to represent the defendant, James Sample, if granted a continuance in this cause until the next term of court, and that no further continuances would have been requested if granted a continuance until the October, 1974 term of this court.
Counsel would have further offered one of the present counsel for the defendant, James Sample, — more particularly, Calvin King, Esquire, of Durant, Mississippi, and upon information and belief, Mr. King would have testified that he has had a great deal of difficulty in communicating with the defendant herein, James Sample, during his preparation of trial, and as a result has been hampered in his total preparation for trial of this cause.
And based on this testimony and other testimony which would have been given in support of the motion for continuance, Counsel feels that the motion for continuance was well taken.

It is against this factual background that Sample argues the court should have held a hearing on his motion for a continuance. He relies on Watson v. State, 196 So.2d 893 (Miss.1967) where we held that when constitutional rights are involved it is incumbent upon a trial court to have a full blown hearing and a record reflecting same so that on appeal we may determine if a defendant has been denied any of his constitutional rights. In Watson the Court was concerned with the defendant’s complete lack of counsel at trial rather than the question of defendant’s right to have counsel of its own choice to represent him. Unlike Watson, the record is adequate to reflect the facts pertaining to the motion for continuance.

We recognize that the defendant must be given a reasonable opportunity to employ and consult with the attorney of his choosing. Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958) and Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954).

Sample was given a reasonable opportunity to employ counsel of his choice and had from October, 1972, until April 24, 1974 to obtain private counsel. The time lapse between his arrest and trial was reasonable. He had discharged counsel previously employed by him and was twice afforded appointed counsel.

In Myers v. State, 296 So.2d 695 (Miss.1974), counsel, retained by third persons to represent defendant, was disqualified by the court and another attorney appointed to represent the defendant. On the date set for trial the attorney who was previously disqualified was reinstated on motion of defendant’s appointed counsel. When the reinstated attorney was informed of the ruling by telephone, he was requested to appear immediately and represent the defendant. The attorney declined and dictated to the court reporter his objection to the proceeding. The trial resulted in the conviction of the defendant and we reversed on the ground that Myers was denied right to counsel of his choice. The defendant in Myers maintained his right to a specified private attorney and did not vacillate in his choice of attorneys as did Sample in the present case.

The statement dictated into the record on the day of trial of the matters which Sample’s retained attorney would prove in support of the application for continuance was insufficient, under the facts of this case, to justify the continuance. The allowance of a continuance is a matter largely within the sound discretion of the trial judge whose judgment will be reversed only when an abuse of discretion appears. Parham v. State, 229 So.2d 582 (Miss.1969). There was no abuse of discretion by the trial court in this case and we hold that the continuance was properly denied.

Sample’s next assignment of error is that the evidence was not sufficient to establish the corpus delicti. On the after-. noon of October 5, 1972, Sample was returning to his home from hunting squirrels when someone shot at him as he walked along Morgan Street. Sample returned the fire and made his way to his house. Shortly thereafter W. M. McNeer, Chief of Police of Lexington, and Amos Hampton, another police officer, proceeded to the scene to investigate the reported shooting. When the officers turned north onto Morgan Street where Sample lived, they observed Sample standing on his porch holding a rifle. They parked their car on the east side of the street in front of Sample’s house and as they were getting out of the car Sample opened fire on them with a rifle and a shotgun wounding both officers. They returned his fire with their hand guns and took refuge behind a house across the street.

Meanwhile, in response to a call, Billy Ellison arrived at the scene in his ambulance. He observed Officer Hampton standing in the doorway of a house on the west side of the street and parked his car behind the police car but on the west side of the street. Ellison was followed by a car driven by Pettus in which Ronnie Dickard, deceased, was a passenger. Pet-tus parked a short distance behind the ambulance on the west side of the street. Ellison heard several shots while getting out of his ambulance but could not determine the direction from which they came. He took cover behind his vehicle. Meanwhile Pettus and Dickard had gotten out of their car and were walking toward the ambulance when Pettus heard a shot. He and Dickard returned to their car and as Dick-ard was getting in on the right front side of the car, the side facing Sample’s home, he was hit by a gunshot. Fatally wounded, he fell into the front seat of the car. Pet-tus took refuge behind the car until rescued by the sheriff.

Shortly after Dickard was shot, Sheriff Calvin Moore arrived with his Deputy, Howard Huggins. He tried to coax Sample into surrendering and upon receiving no response, fired tear gas into the house. Moore used a protective shield to reach the Pettus car and removed it to safety. A shotgun, some shotgun shells and rifle cartridges which had been fired were recovered in the search of Sample’s house and yard. Bloodhounds led the sheriff to Sample who was seated beside a tree with a rifle in his hand. Sample was arrested without incident.

The pathologist who performed an autopsy on Dickard stated that Dickard died as a result of a bullet which entered the right side of his chest behind the arm pit. He placed Dickard’s time of death at about five minutes after he was hit.

A British Enfield 303 rifle was taken from Sample when he was arrested and Donald Ates, a Criminalist at the Jackson Police Department and Mississippi Highway Patrol Laboratory, testified that the bullet removed from Dickard’s body was fired from a gun having the same identical physical characteristics as Sample’s rifle as far as its make. He could not say that the bullet was fired from the particular rifle because of damage to the bullet. He stated that all of the empty rifle shells found around Sample’s • home were fired from Sample’s rifle.

The location of the wound in Dickard is consistent with the inference that the shot came from the direction of Sample’s house. No other party involved in the shooting had a British Enfield 303 rifle.

Sample did not testify and the only evidence controverting any of that offered by the State was that the first officers who arrived shot at Sample before Sample returned their fire. Although no witness saw Sample fire the shot that killed Dick-ard, the circumstantial evidence was strong enough for the jury to believe, beyond any reasonable doubt, that Sample fired the shot.

Sample next argues that it was error to grant Instruction No. 7 for the State and that we should notice this instruction under the plain error rule. It is a familiar rule that instructions must be taken as one body, and announce the law, not the law of the State or the defendant, but the law of the case. Holmes v. State, 192 Miss. 54, 4 So.2d 540 (1941) and Williams v. State, 95 Miss. 671, 49 So. 513 (1909).

The instruction was erroneous but the instructions as a whole advised the jury of the true principles applicable to the case made by the facts. It is difficult for us to see how the jury could have returned any other verdict under the evidence. We therefore hold that giving Instruction No. 7 was harmless error.

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

Affirmed.

All Justices concur.


author: ROBERTSON, Justice:

text:
    Leroy McCRAY v. STATE of Mississippi.
    No. 48676.
    Supreme Court of Mississippi.
    Oct. 20, 1975.
    Samuel H. Wilkins, G. Garland Lyell, III, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   ROBERTSON, Justice:

Leroy McCray was convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, of the crime of murder, and was sentenced to -life imprisonment in the penitentiary.

About 7 o’clock p. m. on October 8, 1972, William H. Kelly was killed during the course of an armed robbery. Kelly owned and operated the Beasley Road Shopette on Beasley Road. McCray and Clem Jimpson were jointly indicted, but were tried separately and Jimpson was convicted on December 7, 1972. Two eyewitnesses placed the appellant and Jimpson together at Beasley Road Shopette, the sceile of the crime, just minutes before the shooting and immediately after it. Jimpson pulléd a pistol on Kelly, and Kelly drew his pistol in defense. Several shots were exchanged. Jimpson was not hit, but Kelly was killed with one shot which entered his back in the right shoulder area.

Jimpson and McCray were both pifcked up on October 9, 1972, the day after the shooting, and about 9:30 p. m. that night, after his Miranda rights had been fully fex-plained to him and he had signed a written waiver, McCray made a full statement of his part in it. The statement was reduced to writing, signed by McCray and witnessed by Lt. Glenn Cumberland and Sgt, James D. Taylor of the Jackson Police Department. In his statement, McCray said he and Jimpson went to the Shopette together, that Jimpson and Kelly exchanged shots and that he, McCray, drove Jimpson from the scene to their respective homes. McCray stated that he and Jimpson lived on Edwards Avenue across the street from each other. Cumberland and Taylor both testified that his rights were read to McCray and explained to him, and that he was given a copy of his rights to read before he signed the waiver. Both officers testified that no threats were made, no duress applied, and no promises made.

The first assignment of error was that the trial court should not have admitted into evidence the confession because McCray did not intelligently waive his rights, especially his right to remain silent and his right to have counsel present. This ground of objection was asserted for the first time on appeal. At the preliminary hearing, the grounds of objection to the admission of his statement were that there was not a lawful arrest and that the corpus delicti had not been proved.

This Court said in Stringer v. State, 279 So.2d 156 (Miss.1973) :

“The statement of one or more specific grounds of objection to the introduction of evidence is a waiver of all other grounds of objection.” 279 So.2d at 158.

We also said upon the first appeal of this case, wherein the conviction and sentence were reversed because the conviction of a co-indictee, Clem Jimpson, was improperly admitted into evidence, that:

“We have maturely considered the argument and authorities advanced in support of the inadmissibility of the confession and are of the opinion that it is without merit. Our primary concern is with the consequences emanating from the introduction of a certified copy of the co-indictee’s conviction and sentence.” McCray v. State, 293 So.2d 807-08.

The second assignment of error was that the trial court erred in refusing to grant appellant’s instructions 12, 13, 14 and 15. These instructions were properly refused by the court. They all had to do with a completely circumstantial evidence case, and required that the jury be able to find appellant guilty “beyond every reasonable doubt and to the exclusion of every reasonable hypothesis consistent with his innocence.” There was both direct and circumstantial evidence in this case. The confession itself was direct evidence.

In Nobles v. State, 241 So.2d 826 (Miss.1970), we held:

“The objection to the State’s second instruction based upon the theory of guilt if proven beyond a reasonable doubt rather than to the exclusion of every other reasonable hypothesis is not an error because the testimony in this case is not based wholly upon circumstantial evidence. Here we have the confession of the defendant that he had been in ‘Valley Auto.’ (Citations omitted).” 241 So.2d at 828.

In his third assignment of error the appellant contends that “The circuit court erred in allowing the Appellant and his witness (Clem Jimpson) to be impeached on a collateral issue or immaterial matter.” The State’s case against appellant was based on these conditions: that McCray and Jimpson knew each other well, that they were together at the scene of the crime both before and after it was committed, that they arrived and departed the scene in the same car, and that they, in fact, committed the crime together.

The State did not deny that Jimpson actually fired the fatal shot but the State’s case was that McCray accompanied Jimp-son, knew what they were at the Shopette for, agreed with the purpose of their visit, and actually participated in the crime.

After the State rested, Jimpson testified as a witness for the appellant and admitted that he, Jimpson, shot Kelly. He denied on cross-examination that he even knew the appellant, and denied that appellant assisted him or was even present. Jimpson denied that he could write and denied that he ever wrote appellant. He finally admitted that he could write his name, and he was asked, while he was on the witness stand, to write certain words, which he did.

In rebuttal the State called as a witness the jailer who was in charge of the jail when McCray and Jimpson were first confined. He testified that Jimpson sent a letter to McCray while in jail. The letter was not signed, was addressed to “Dig” and advised “Dig” to stick to his story and to make no deal with the State, that he would help Dig get out of it.

Thomas L. Packer, a handwriting expert with the Crime Lab of the Jackson Police Department, was then called, and was qualified as an expert on handwriting to the satisfaction of the court. Packer testified that he carefully compared Jimpson’s signature and the handwriting specimen given on the stand, with the letter addressed to Dig, and that in his considered opinion the letter was entirely written by Jimpson.

It is perfectly clear and obvious that this was impeachment on a very material and very important matter, a matter going to the very heart of the case, and was by no means impeachment on a collateral or immaterial matter. The court was correct in allowing this testimony. The Court was also correct in allowing Packer to testify as an expert witness in the field of handwriting analysis.

There being no fatal error committed in the trial of this case, the conviction and sentence are affirmed.

Affirmed.

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


text:
    Mildred HICKS et al. v. PEOPLES BANK.
    No. 48300.
    Supreme Court of Mississippi.
    Oct. 20, 1975.
    Jackson M. Brown, Starkville, for appellants.
    Burgin, Gholson, Hicks & Nichols, John W. Crowell, Columbus, William Ward, Starkville, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   Affirmed.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. David H. FLOWERS, Respondent.
    No. 47,322.
    Supreme Court of Florida.
    Oct. 15, 1975.
    Leonard Rivkind, Miami Beach, Richard C. McFarlain and William B. Wiley, Tallahassee, for The Florida Bar.
    David H. Flowers, in pro. per.
   PER CURIAM.

This cause is before us on the petition of The Florida Bar filed pursuant to Article XVI of the Integration Rule charging Respondent with the unauthorized practice of law. Article II, Section 2, of the Integration Rule provides:

“No person shall engage in any way in the practice of law in this state unless such person is an active member of The Florida Bar in good standing except that a practicing attorney of another state, in good standing, who has professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business only, when it is made to appear that he has associated and appearing with him in such business an active member of The Florida Bar.”

Our jurisdiction to prohibit the unauthorized practice of law stems from Article V, Section IS, Florida Constitution, which provides that this Court “shall have exclusive jurisdiction to regulate the admission of persons to the practice of law. . , .” This constitutional authority necessarily includes the power to prevent the unauthorized practice of law.

In its petition The Florida Bar alleges that at all times material herein Respondent was not and is not a member of this Bar or the Bar of any State or of any federal court; that he was not and is not licensed to engage in the practice of immigration law in this or any other State of the Union. Further, Petitioner alleges that Respondent has engaged in the unauthorized practice of law in. Dade County by one or more of the following acts :

“A. In or about August, 1974, by preparing and/or causing to be prepared and by affixing his signature thereto, a U.S. Department of Justice, Board of Immigration Appeals and Immigration and Naturalization Service Form G-28, ‘Notice of Entry of Appearance as Attorney or Representative,’ in the case of Dad Mohammed Baloch, wherein Respondent directly and specifically held himself out to be a member of The Florida Bar and ‘U.S. Court, So. District.’ A copy of said Form G-28 is attached hereto as Petitioner’s Exhibit One.
“B. In or about September, 1974, by orally communicating with an immigration deportation officer on behalf of Dad Mohammed Baloch, and by subsequently writing said deportation officer on behalf of Mr. Baloch requesting an extension of Mr. Baloch’s voluntary departure from the United States. By such acts, Respondent directly and impliedly held himself out to be a licensed attorney-at-law in the State of Florida. A copy of the referenced letter is attached hereto as Petitioner’s Exhibit Two.
“C. In or about June through September, 1974, by holding himself out as a licensed attorney and by rendering legal services and advice to Bertha Virginia Payne-Edwards in the context of her immigration status prior to and subsequent to marriage to one Richard A. Edwards.
“D. In or about September, 1974, by preparing and/or causing to be prepared and by affixing his signature to, a U.S. Department of Justice, Board of Immigration Appeals and Immigration and Naturalization Service Form G-28, ‘Notice of Entry of Appearance as Attorney or Representative,’ in the case of Rose Marie Hepburn, wherein Respondent directly and specifically held himself out to be an attorney-at-law and further, by stating his association with a member of The Florida Bar, i. e., one Theodore Fischer. A copy of said Form G-28 is attached hereto as Petitioner’s Exhibit Three.
“E. In or about September, 1974, by preparing and/or causing to be prepared and by affixing his signature to, a U.S. Department of Justice, Board of Immigration Appeals and Immigration and Naturalization Service Form G-28, ‘Notice of Entry of Appearance as Attorney or Representative,’ in the case of Ann Welch, wherein Respondent directly and specifically held himself out to be a licensed attorney and further, by stating his association with a member of The Florida Bar, i. e., one Theodore Fischer.
“F. In or about October, 1974, by preparing and/or causing to be prepared and by affixing his signature to, a U.S. Department of Justice, Board of Immigration Appeals and Immigration and Naturalization Service Form G-28, ‘Notice of Entry of Appearance as Attorney or Representative,’ in the case of Jean C. Jean-Pierre, wherein Respondent directly and specifically held himself out to be a member of The Florida Bar and ‘U.S. Court, So. District.’ A copy of said Form G-28 is attached hereto as Petitioner’s Exhibit Four.
“G. In or about December, 1974, by preparing and/or causing to be prepared and by affixing his signature to, a U.S. Department of Justice, Board of Immigration Appeals and Immigration and Naturalization Service Form G-28, ‘Notice of Entry of Appearance as Attorney or Representative,’ in the case of Andre Gaston, wherein Respondent directly and specifically held himself out to be a licensed attorney and an associate of a member of The Florida Bar, i. e., one Theodore Fischer.
“H. In or about December, 1974, by preparing and/or causing to be prepared and by affixing his signature to, a U.S. Department of Justice, Board of Immigration Appeals and Immigration and Naturalization Service Form G-28, ‘Notice of Entry of Appearance as Attorney or Representative,’ in the case of Max Phillippe, wherein Respondent directly and specifically held himself out to be a licensed attorney and an associate of a member of The Florida Bar, i. e., one Theodore Fischer.
“I. By the aforesaid acts, Petitioner has held himself out to be a practicing attorney in the State of Florida, and has, in addition, rendered legal counsel and related services in the area of immigration and naturalization law.”

In Respondent’s answer to this Court’s Rule to Show Cause he admits that he is not a member of The Florida Bar or any other Bar, State or federal, submitting that he has been self-employed for many years in the profession of Marketing Research for well-known national corporations, although for approximately three to four years he was employed by the United States Department of the Interior, Division of Territories and Island Possessions and, subsequently, Insular Government of Puerto Rico, as the administrative assistant ' to the Governor.

Replying specifically to Paragraphs AH, supra, of the petition, Respondent states “. . . that approximately February 1, 1974 he was hired by Theodore Fisher, Attorney, as a salaried employee and in a clerical capacity. Mr. Fisher is a lawyer, a member of the Florida Bar and is authorized to practice before the U.S. Court, Southern District.” Additionally, Respondent answers:

“B. Respondent states that at that time Mr. Fisher informed him Mr. Fisher was representing a number of clients before the U.S. Department of Justice, Immigration and Naturalization Service and that as soon as feasible he wanted the Respondent to do necessary work in Mr. Fisher’s office and at the offices of Immigration and Naturalization Service pertaining to clients’ pending and new applications for permanent residence in the U.S. and corollary matters.
“C. Respondent further states that Mr. Fisher told the Respondent specifically at such time with no hesitation or doubt that it was not necessary for Respondent to be an attorney and that as a layman, Respondent could perform this work as long as Respondent was associated with or worked for a lawyer.
“D. Respondent further states Mr. Fisher told the Respondent that as a lawyer, Mr. Fisher would represent all clients in matters coming before any trial judge at the Immigration and Naturalization Service as this was an area where a lawyer was required. Respondent states that he never appeared before a trial judge in any manner except for sometimes arranging for Mr. Fisher’s appearances with the judges’ secretaries.
“E. . . . Respondent had prepared and filled out G-28 forms ‘Notice of Entry of Appearance as Attorney or Representative’ for Mr. Fisher’s signature on numerous occasions and to alleviate typing repetitive information such as ‘Florida Bar, U.S. Court, Southern District’, under Section 1. of the form and all other information required by the form that could be typed, had caused this information to be mimeographed, using an original G-28 form. The mimeographed forms were then used requiring only client information and Mr. Fisher’s signature, saving considerable secretarial time.
“Respondent states that at a later date when he began work requiring appearance at the Immigration and Naturalization’s various divisions, he had similar mimeographed forms prepared for his own use and placed for use when needed in the form files. With particular reference to section 1 of the G-28 form, where ‘X’ designates an attorney and member in good standing of applicable bars, Respondent states that this was closely interpreted by him to mean said Theodore Fisher’s qualifications and not the Respondent’s. This interpretation was based on (1) Mr. Fisher’s statements contained in C and D above, (2) the fact that invariably section 3 of the G-28 form always designated Respondent’s association (employment) with Mr. Fisher and (3) that Mr. Fisher knew of the existence of the G-28 form prepared for Respondent’s signature inasmuch as the form files contained such copies as did some of the clients’ files which Mr. Fisher reviewed and used.
“F. . . . Respondent did sign letters using the letterhead of Mr. Fisher dealing with matters directly relating to work done by Respondent so that proper and prompt follow-up by Respondent upon reply could be taken. At no time did the Respondent indicate by any reference under his signature that he was an Attorney. Again, Respondent wrote such letters believing firmly on Mr. Fisher’s statement in C & D above. Other letters on matters primarily handled by Mr. Fisher were prepared for his signature.
“G. Respondent states that in or about December, 1975, (sic) Mr. Fisher informed Respondent that an official with the Immigration and Naturalization Service, Ruth Zavoli, stated she was going to take action against the Respondent for unauthorized practice of law. There followed a discussion wherein Respondent asked Mr. Fisher to go immediately to the proper authorities in Immigration and Naturalization Service and verify Mr. Fisher’s statements to Respondent contained in C & D above.
“At the same time Respondent stated to Mr. Fisher that he would no1 longer do work at Immigration and Naturalization Service until a definite ruling or opinion was given by proper officials of said service and Mr. Fisher promised to do so. Mr. Fisher never secured such an opinion or ruling from proper officials on repeated requests by Respondent. Because the issue was never resolved, Respondent ceased doing any significant Immigration work and the association with Mr. Fisher ended March 1, 1975.
“H. Respondent states that he was employed by Mr. Fisher on a salary and never received any fees or monies from clients.
“I. Respondent states that he has never knowingly represented himself as an attorney, has ceased his employment with Mr. Fisher and has no intention now or in the future of representing himself as a lawyer.
“J. Respondent states he has no objection to issuance of a permanent injunction by this Court restraining the Respondent from engaging in the practice of law in the State of Florida.”

Thereafter Petitioner moved for a judgment on the pleadings; this motion is granted. We do, therefore, issue a permanent injunction restraining Respondent from the following activities:

(a) Respondent shall not prepare and/or cause to be prepared and/or affix his signature to U.S. Department of Justice, Board of Immigration Appeals and Immigration and Naturalization Service Forms G-28, “Notice of Entry of Appearance as Attorney or Representative” on behalf of any person or persons;

(b) Respondent shall not advise, counsel, and/or represent, for a fee or otherwise, any person or persons in reference to the immigration and naturalization laws of this Country unless and until he is licensed to engage in such practice by appropriate authority ; and

(c) Respondent shall not otherwise hold himself out as an attorney and/or engage in the practice of law in the State of Florida.

We assess the costs of these proceedings against Respondent.

_ . It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and HATCHETT, JJ., concur.

      . State ex rel. Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962), judgment vacated on other grounds 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963).