author: WALKER, Justice, BROOM, Justice,

text:
    Charles S. BELL v. STATE of Mississippi.
    No. 50382.
    Supreme Court of Mississippi.
    May 24, 1978.
    Rehearing Denied Aug. 9, 1978.
    See also Miss., 353 So.2d 1141.

      Paul Richard Lambert, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of Forrest County, Mississippi. Charles S. Bell was indicted for the capital murder of Danny C. Haden pursuant to Mississippi Code Annotated section 97-3-19(2)(e) (Supp.1977). He was afforded a bifurcated trial under the standards announced by this Court in Jackson v. State, 337 So.2d 1242 (Miss.1976), conforming to the opinions in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). At the conclusion of the guilt phase, the jury returned a verdict of guilty. Thereafter, a separate hearing was conducted on the issue of sentence by the same jury. After deliberation, the jury returned with a written verdict signed by all jurors stating that:

We the jury, unanimously find that after weighting [sic] the mitigating circumstance and the aggravating circumstance, one against the other, that the mitigating circumstances do not outweight [sic] the aggravating circumstances, and that the defendant should suffer the penalty of death.

The facts of this case are uncontradicted except for the question of who actually pulled the trigger. Both the defendant, Bell, and his former codefendant, Posey, agreed in their testimony at trial as to what transpired until the very moment the actual shooting took place.

On the night of June 21,1976, or morning of June 22, 1976, Charles Bell, Bobby McFarland, Caesar Posey and Luther York drove into an Amoco service station in Hat-tiesburg, Mississippi to purchase gas. Shortly after leaving, McFarland brought up the idea of robbing the service station. All agreed, and armed with three shotguns and one .22 rifle, they returned to the station.

Upon the approach of the attendant, McFarland held a shotgun up to the window and relieved the attendant of his money. He then ordered the attendant to get into the car. While driving in the car, the attendant was searched and relieved of other personal items by Bell and York. After passing through the small town of Petal, Mississippi, McFarland, then driver of the car, stopped it in a wooded area and ordered the attendant, Danny Haden to get out.

Thereafter, Bell, McFarland and York took the victim into the woods. Posey remained in the car. After traveling a short distance into the woods, the victim was summarily executed, suffering a shotgun blast to the neck which decapitated him, and a blast from another shotgun in the back.

It is uncontradicted that all three participants in the final execution were armed when they left the car and when they returned. There is, however, a conflict in testimony as to who was armed with what and who actually fired the shots that murdered the victim.

Posey, who remained in the car, testified that throughout, Bell and McFarland were armed with shotguns while York was armed with a .22 rifle. He further testified that upon returning to the car, Bell told him that McFarland had shot the victim in the neck and he (Bell) had shot the victim in the back. This was corroborated by the testimony of another witness, Aubrey Wayne Evans, a cell mate of Bell’s while Bell was held pending trial. Evans testified that in a conversation Bell said in reference to the service station attendant, “We shot him,” and, “As he fell I [Bell] shot him again.” Bell testified that he saw McFarland “blow his head off,” but alleged that York fired the shot to the back.

I.

THE INDICTMENT

Bell alleges the failure of the court to grant his motion to quash the indictment was error. His contention is based upon the argument that the indictment was fatally defective because it did not specifically and particularly describe and define the offenses charged therein.

Although Mississippi Code Annotated section 99-7-21 (1972) requires objection to an indictment with error appearing on its face to be raised by demurrer to the indictment, nevertheless, defendant’s argument also fails on substantive grounds. Mississippi Code Annotated section 99-17 — 20 (Supp. 1977) requires that an indictment charging capital murder specifically cite the section and subsection of the Code relied on to constitute the offense. The indictment, as amended, charged:

[T]hat Charles Sylvester Bell and Caesar Posey, in conjunction with each other, on the 22nd day of June, 1976, in Forrest County aforesaid: did unlawfully, willfully and feloniously, with malice aforethought, kill and murder one D. C. Ha-den, a human being, while engaged in the commission of the crimes of armed robbery and kidnapping upon him, in violation of Section 97-3-19(2)(e) (See appendix) of the Mississippi Code of 1972, as Amended, against the peace and dignity of the State of Mississippi.

In Bell v. State, 353 So.2d 1141 (Miss.1977), we considered an indictment containing virtually identical wording and upheld it. As we pointed out then, the statutory language adequately defines the offense. Here, the indictment as written was sufficient to give the defendant fair notice of the crime charged in clear and intelligible language. Varnado v. State, 338 So.2d 1239 (Miss.1976); Westmoreland v. State, 246 So.2d 487 (Miss.1971).

II.

THE PETITION FOR PSYCHIATRIC EXAMINATION

Defendant argues the court’s refusal to have him committed for psychiatric examination prior to trial was reversible error. Mississippi Code Annotated section 99-13-11 (1972) states that the trial judge may order a mental examination, where “ . . . the mental condition of a person indicted for a felony is in question . . .” In McLeod v. State, 229 So.2d 557 (Miss.1969), where the Court construed Mississippi Code of 1942 Annotated section 2575.5 (Supp.1968), which is identical to the present section 99-13-11, we stated:

It is the purpose of this statute to assure that a defendant is mentally capable of standing trial and is able to confer intelligently with his attorney in the preparation of his defense. Evidence of the probability that the accused is unable to assist in his own defense must be presented. (Citation omitted). The trial judge has reasonable discretion in determining whether the accused should be examined by a psychiatrist. (Citation omitted). (229 So.2d at 559).

At the hearing on Bell’s petition for a psychiatric examination, the only evidence offered by petitioner was his own testimony. Bell testified that he “had been having problems with my head lately” and that he had headaches for the past five or six months. On the other hand, he testified that he was able to and had cooperated with his attorney in preparation for trial, and that he did not think he was “crazy” or a “psychopath.” On this evidence, it cannot be said the trial judge was incorrect in denying a psychiatric examination.

III.

THE MOTION TO SUPPRESS THE STATEMENT OF THE DEFENDANT

Prior to trial the defendant made a motion to suppress a statement given to investigators while he was incarcerated pending a trial on other charges. The grounds for suppression were that the statement given was in violation of the Fourth and Fifth Amendment rights to counsel and the privilege against self-incrimination. After a hearing, the trial judge denied the motion.

Specifically, Bell contended that his written statement (1) was not voluntarily given; (2) was given in the absence of effective Miranda warnings and without an effective waiver; and (3) was not substantially recorded in the words he used.

The statement in question was given by Bell on January 15, 1977. This was the same day the body of Danny Haden was located, after having been missing for some six or seven months. The statement in its entirety was subsequently introduced into evidence. The statement was preceded by a written waiver of Fourth and Fifth Amendment rights and was essentially identical to defendant’s testimony at trial, except that in the statement he denied having gone into the woods with the victim and McFarland.

At the pre-trial suppression hearing, Detective Sergeant Gerald Rice of the Hatties-burg Police Department testified that he was present when the statement was made, and that it was freely and voluntarily given without coercion or promises on the part of the law enforcement officials. The statement itself was introduced into evidence. The statement was preceded by a written waiver of rights signed by Bell and witnessed by Arlon Moulds and Gerald Rice as was the statement.

During the hearing, Bell, on cross-examination, testified himself that (1) he signed the statement; (2) he understood his rights at the time; (3) the persons present did not physically abuse him, nor coerce him, nor promise any reward; and (4) he gave and signed the statement freely and voluntarily.

Based on his own testimony, there can be no doubt that the .statement as given was given voluntarily and with full knowledge of his rights at that time.

Bell also contended at the pre-trial hearing that the statement was not couched in his language, but in that of the investigating officers. The only evidence presented at the hearing on that issue was the testimony of the defendant. He testified that he did not use the word “Hercules” in his statement and that he did not know where the City of Laurel was located. Within the statement was the sentence, “So they changed places again and Bobby drove past the Hercules going like to town. . . ” Another sentence stated “then Bobby drove on up through Laurel and later we came back to Hattiesburg.”

In the first instance, neither word is material to the content of the statement, nor would they vary the meaning of the statement. In the second instance, Arlon Moulds who witnessed the statement testified that he furnished the name of the plant and street names from his knowledge of the area, as Bell described each location. We cannot say from the record that the changes were substantial or significant enough to justify suppression of the statement.

The final contention of defendant is that the statement should be suppressed based upon an alleged earlier violation of his constitutional rights. At the hearing, Bell testified that approximately one month and a half prior to his statement (e. g., December 2, 1976), he was beaten and coerced by police officers in an attempt to get him to show the officers the location of the body of Danny Haden. According to Bell, on the night of December 2 there was an attempted jail break and in the course of that, Bell was taken to the second floor of the jail complex where he was assaulted by some nine or ten police officers. According to him, one of them asked where the body was. Subsequently, according to Bell, the officers took him out in search of the body in the early morning of December 3 and that both he and Caesar Posey were threatened that the officers would kill them if they did not give the location of the body. According to Bell, three more trips were made, two on December 3 and on December 4. However, no statement was given by Bell or Posey at that time.

In rebuttal, the state put on Detective Sergeant Rice, Deputy Sheriff Joe Hop-stein, Investigator Arlon Moulds, Deputy Sheriff Frank Evans and Deputy Sheriff William Martin. Deputy Sheriff Hopstein as well as Deputy Sheriff Evans testified that Bell went on the search freely and voluntarily. Each denied any knowledge of physical abuse or threats.

In the first instance, based on the conflicting testimony as to the occurrences, we are unable to say the trial judge was wrong in finding there were no abuses. Additionally, no “statements” were made or sought to be introduced by the state as to these events. On the contrary, all references to these events at the trial on the merits were raised by the defendant himself.

Appellant attempts to argue that the holding of the Supreme Court in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) mandates suppression of the statement. This argument fails for two reasons:

(1) Unlike in Brewer, the “interrogation” produced neither an incriminating statement which the state sought to introduce at trial nor did it produce the body of the deceased; and

(2) Here the statement which was introduced at trial was given some one and one-half months later and was a product of defendant’s express knowing, intelligent and voluntary waiver of his rights.

IV.

APPLICATION OF THE CAPITAL MURDER STATUTE AS CONSTRUED BY THE CASE OF JACKSON V. STATE.

The murder of Danny Haden occurred on June 22, 1976. At that time the capital murder statute in force was Mississippi Code Annotated section 97-3-19(2) (Supp.1977) and the death penalty statute was Mississippi Code Annotated section 97-3-21 (Supp.1977). In October 1976, prior to the apprehension and trial of Bell, this Court construed the Mississippi statutes in the light of the United States Supreme Court decisions on the death penalty. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The Court at that time also prescribed the rules of procedure to be applied in capital murder cases. Jackson v. State, 337 So.2d 1242 (Miss.1976).

Under the rule of Jackson in a capital murder case, the following procedure was prescribed:

AT TRIAL

(1) A bifurcated trial with a guilt phase and a sentencing phase;

(2) Consideration of mitigating and aggravating circumstances at the sentencing phase and a weighing of each, and of each against each other; and

(3) If the sentence is death, there must be a unanimous finding in writing by the jury that, after weighing the mitigating and aggravating circumstances, one against the other, the mitigating circumstances do not outweigh the aggravating circumstances and that the defendant should suffer the penalty of death.

ON APPEAL

(1) Automatic review as a preference case;

(2) Review of the aggravating and mitigating circumstances to determine whether the punishment of death is too great when the two are weighed against each other; and

(3) Comparison to similar cases to insure that the death sentence is not inflicted in a wanton or freakish manner but in a consistent and even-handed manner.

In the present case defendant Bell received a bifurcated trial. At the conclusion of the guilt phase, the jury returned a verdict of guilty as charged. Examination of the testimony reveals that Bell himself, while testifying, admitted to all of the elements of the crime of capital murder, denying only that he actually pulled the trigger. Other testimony before the jury was sufficient for them to find as a matter of fact that Bell actually pulled the trigger. There can be no doubt as to the findings of guilt in the present case beyond a reasonable doubt.

After the guilty verdict, the same jury was empanelled to hear circumstances in mitigation or aggravation and to pronounce the sentence. The state moved to reintroduce all evidence admitted at the guilt phase into the sentencing phase and introduced the prior convictions of Bell. The defendant then moved to reaffirm the testimony of the defendant. At that time both the state and defendant declined to put on further witnesses when given the opportunity to do so. Final argument on sentencing was made by both the state and the defendant. The jury then returned the death penalty in written form.

Upon appeal the case was granted preference status. Oral arguments were heard by the Court en banc rather than by the usual three-judge panel. The Court fully considered the mitigating versus the aggravating factors and compared the case with similar cases in the following manner.

A.

MITIGATING VERSUS AGGRAVATING FACTORS

(1) Mitigating factors.

We held in Jackson v. State that at the sentencing hearing “the defendant may introduce competent evidence relevant to determination of his punishment, even though such evidence might not have been admissible on the question of guilt,” and that “[h]e may prove his lack of a prior criminal record and may introduce such other evidence of his character or the particular circumstance of his crime that would be relevant in deciding whether he should be sentenced to death or life imprisonment.” (337 So.2d at 1254). By incorporating the defendant’s trial testimony into the sentencing portion, the following circumstances in mitigation were before the jury.

(1) On the night of the murder, Bell had been taking marijuana and other drugs; and

(2) According to Bell’s testimony, he was an accomplice only and asked McFarland not to kill the victim. That he had asked McFarland not to kill the victim at one time was corroborated by Bell’s codefendant, Po-sey.

While not before the jury, we, as an appellate court, under our own duty to weigh the mitigating factors take note that the record reveals in addition the mitigating circumstance that Bell was either seventeen or eighteen years old when the crime was committed and twenty years old at the time of trial. We also take note that included in the record is the defendant’s motion for a psychiatric examination and we note the evidence put forth on that motion though the motion was correctly denied.

(2) Aggravating circumstances.

In Jackson, we pointed out that although Mississippi had not adopted a list of statutory aggravating circumstances, its action in narrowing the categories where capital punishment may be imposed serves the same purpose. Jackson at 1254; See also Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). We went on to hold that “In essence, the Mississippi statutes require that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed.” In that case we pointed out that the statutory aggravating circumstance was that of murder while attempting rape, Mississippi Code Annotated section 97-3-19(2)(e) (Supp.1977). In the present case, the jury had been previously instructed at the guilt phase:

. if you believe from the evidence presented in this case beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence, that the defendant Charles Sylvester Bell in Forrest County, Mississippi on the 22nd day of June, 1976, wilfully, unlawfully and feloniously and of malice aforethought kill and murder Danny Haden, a human being, while in the commission of the crime of armed robbery and kidnapping then it is your sworn duty to find the defendant guilty as charged.

In another instruction the jury was instructed that defendant was charged with the crime of capital murder for having caused death while committing armed robbery or kidnapping. The instruction went on to state, “If you find from the evidence in this case beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that the defendant was engaged in the criminal act of armed robbery or kidnapping, then you shall find the accused guilty of capital murder.”

The jury found that the defendant had committed the murder and that it occurred during the acts of armed robbery and kidnapping. In the sentencing hearing, the record submitted to the jury showed by the defendant’s own admitted testimony that he had participated in the armed robbery, kidnapping and murder of Danny Haden. Mississippi Code Annotated section 97-3-19(2)(e) (Supp.1977) which, under Jackson, lists statutory aggravating circumstances, provides that killing of a human being shall be capital murder “[w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of kidnapping or robbery . . . .” Based upon the evidence before the sentencing jury, they did and justifiably so, conclude the presence of this statutory aggravating circumstance.

Balancing the mitigating factors before the jury against the aggravating factors before the jury, we cannot say the jury was erroneous in its conclusion. The jury was fully aware of Bell’s denial that he actually shot the victim and aware of his testimony that he had asked McFarland not to shoot the victim at one time. They also had before them the testimony relating to the use of drugs prior to the execution. However, in balancing this against Bell’s clear and voluntary participation in armed robbery, kidnapping and the execution style murder, the jury concluded the death sentence was required. We cannot say the jury was incorrect but rather they were more than justifiably correct.

Nevertheless in our duty on review as specified in Jackson, we here review all mitigating and aggravating factors which appear in the record whether submitted to the jury or not. We have heretofore noted the age of the defendant and the evidence going to his request for psychiatric examination. On the other hand, we note this young defendant’s long line of convictions involving crimes of violence, e. g., two convictions of robbery with a deadly weapon, burglary in the second degree, assault with intent to kill, and a prior conviction of capital murder for which he received life imprisonment. We note that the murder occurred in the commission of a crime for pecuniary gain and that the execution type murder itself was especially heinous, atrocious and cruel, involving mental torture of the victim. Moreover, the defendant, in his own testimony, showed little, if any, remorse.

The defendant himself testified that he participated in the armed robbery, voluntarily and without objection, that he assisted in the kidnapping of the young victim, searching his pockets while the terrified victim sat beside him in the car. He then voluntarily, and armed with a weapon, accompanied the victim and two co-conspirators to the execution site in the woods. There, Bell, in his own version, without taking any preventive action watched as “they blowed his head off,” and, “his head fell off, his head came off.” When asked if the victim had a chance to defend himself, Bell replied: “No, sir, he didn’t.” Upon being asked if he had lost any sleep over it, Bell replied, “No, sir,” and “But, I didn’t lose no sleep over it.” Again, upon being asked, “The fact of the matter is you didn’t feel too sorry about it at all, do you Mr. Bell,” the reply was, “No, sir.” Other testimony, of course, by co-defendant was that Bell himself actually fired the second shot into the victim’s back as he was falling down from the decapitating blast.

Under these circumstances, we cannot say the jury was incorrect in its conclusion as to the verdict of death even considering and giving full weight and significance to every possible mitigating factor revealed in the record on both the guilt phase and the sentencing phase.

B.

COMPARISON WITH SIMILAR CASES

In Jackson v. State, we pointed out that the decisions of the Supreme Court clearly impose a requirement of appellate review to insure that the death penalty is not applied wantonly but rather in an evenhanded manner. We went on in that case to require comparison with similar cases but without giving specifics as to the nature of such comparison.

A survey of Mississippi cases reveals that the last capital punishment effected in Mississippi occurred on May 1, 1964. That case, Jackson v. State, 249 Miss. 202, 161 So.2d 660 (1964) was decided on March 16, 1964. The records on executions actually carried out were centralized at the state penitentiary and commenced with March 3, 1955. During that nine-year span, there were thirty-one executions in Mississippi. Of that number, eight were for the crime of rape of an adult. The United States Supreme Court in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) in a plurality opinion ruled that the death penalty in such a case was excessive since grossly disproportionate to the offense.

Two other cases involved rape, e. g., Young v. State, 239 Miss. 369, 123 So.2d 311 (1960) [rape of a seven-year old]; Jackson v. State, 249 Miss. 202, 161 So.2d 660 (1964) [murder and rape of eight-year old]. One case involved the imposition of capital punishment for the crime of armed robbery. Donaldson v. State, 222 Miss. 715, 76 So.2d 848 (1955). The remaining twenty cases in which the death sentence was affirmed were for the crime of murder. Of that twenty, three involved the murder of an-inmate by another inmate at the state penitentiary, two involved the murder of police officers, eight are murders with various aggravating circumstances and most significantly, seven of the cases involved murder in which the aggravating circumstance of robbery or burglary was present. Anderson v. State, 246 Miss. 821, 152 So.2d 702 (1963); Simmons v. State, 241 Miss. 481, 130 So.2d 860 (1961); Thompson v. State, 231 Miss. 624, 97 So.2d 227 (1957); Jones v. State, 228 Miss. 458, 88 So.2d 91 (1956); Keeler v. State, 226 Miss. 199, 84 So.2d 153 (1955); Gilmore v. State, 225 Miss. 173, 82 So.2d 838 (1955); Lewis v. State, 222 Miss. 140, 75 So.2d 448 (1954).

Other cases in which capital punishment was affirmed exhibited the aggravating factor of kidnap and execution style murder, e. g., Gallego v. State, 222 Miss. 719, 77 So.2d 321 (1955); Lewis v. State, 222 Miss. 140, 75 So.2d 448 (1954). It is therefore clear that imposition of the death penalty would not be wanton or arbitrary under the circumstances, based on the survey of prior cases. Nevertheless, given the dates of the cases involved, and the fact that the prior penalties were imposed without full consideration of aggravating and mitigating factors as is now the standard, we elect to reevaluate the consideration of when the death sentence should or should not be imposed.

We note first, as we did in Jackson, that the legislature narrowed the classification of crimes for which the punishment of death could be imposed. In doing so, it selected as one instance the crime of murder where occurring during the commission of armed robbery or kidnapping. We also note that while no death sentences have been affirmed in this Court since 1964, other jurisdictions have recently considered similar cases and have approved the penalty imposed. Richmond v. State, 114 Ariz. 186, 560 P.2d 41 (1976), cert. den’d., 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977) [murder armed robbery]; Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. den’d., 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977) [murder armed robbery]; Harris v. State, 230 S.E.2d 1 (Ga.1976) [Execution style murder], cert. den’d., 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 251 (1977); Floyd v. State, 210 S.E.2d 810 (Ga.1974), cert. den’d., 431 U.S. 949, 97 S.Ct. 2667, 53 L.Ed.2d 266 (1977) [murder armed robbery]; Gholson v. State, 542 S.W.2d 395 (Tex.Crim.App.1976), cert. den’d., 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977) [murder armed robbery].

Based upon the legislative determination as expressed in our capital murder statute, our previous cases where the death penalty was upheld, and a survey of similar cases in other jurisdictions, we cannot say that the punishment here given is disproportionate to the crime committed.

Although not argued as error on appeal, we take note of and have given thorough consideration to certain instructions given by the court. However, after carefully considering the dissatisfaction expressed by some of the Justices with the instructions and reviewing all of the instructions given by the court as a whole, we are unable to say that, although inartfully drawn, instruction No. C.8 found at page 705 of the record, when read in its proper context with instruction No. S-l found at page 707 of the record could have in any way misled the jury-

Some concern was also expressed in conference with instruction No. S-4 which has often been referred to as the “don’t have to know” instruction. It is true that we have held this instruction to be reversible error in a number of cases when the conviction was based upon circumstantial evidence or predominantly circumstantial evidence; however, in this case, the verdict of the jury was not based upon circumstantial evidence. To the contrary, the defendant himself testified to facts or made admissions of facts to a coindictee, who testified to them, that were sufficient to clearly demonstrate Bell’s guilt of the crime charged and to warrant the punishment imposed if believed by the jury, which evidently they did.

We also take note that the record does not reflect that the jury was specially sworn as provided by Mississippi Code Annotated section 13-5-73 (1972) to try the case since it involved the death penalty. However, the presumption is that the trial judge properly performed his duties and that this rebuttable presumption has not been overcome. It has also been mentioned that the trial record does not show that the defendant was present throughout the trial, but an examination of the record reveals numerous references to the defendant being present. Moreover, the attorney for the defendant has made no such complaint and again, the presumption is that the trial judge properly performed his duties and saw to it that the defendant was present at each and every material stage of the proceedings.

The four matters discussed above were not urged or argued in the briefs, but the Court has raised them and discussed them of its own motion and, a majority of the Justices are of the opinion that, beyond a reasonable doubt, the verdict would have been the same had these errors not been committed and that the defendant did in fact receive a fair trial.

For the above stated reasons, the case is affirmed and Friday, the seventh day of July, 1978, is set as the date for the execution of the sentence and the infliction of the death penalty in the manner provided by law.

AFFIRMED AND FRIDAY, JULY 7, 1978, IS SET FOR DATE OF EXECUTION OF DEATH SENTENCE.

SMITH, P. J., and SUGG, LEE and BOWLING, JJ., concur.

PATTERSON, C. J., ROBERTSON, P. J., and COFER and BROOM, JJ., dissent.

APPENDIX

MISSISSIPPI CODE ANNOTATED SECTION 97-3-19 (Supp.1977).

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:

(a) When done with deliberate design to effect the death of the person killed, or of any human being;
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;
(c)When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson or robbery, or in any attempt to commit such felonies.

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

(a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman. For purposes of this paragraph, the term “peace officer” means sheriff of counties and their deputies, constables, marshals and policemen of cities and towns, game wardens, parole officers, a judge, prosecuting attorney or any other court official, agents of the alcoholic beverage control division of the state tax commission, agents of the bureau of narcotics, personnel of the Mississippi Highway Patrol, and the superintendent and his deputies, guards, officers and other employees of the Mississippi State Penitentiary;
(b) Murder which is perpetrated by a person who is under sentence of life imprisonment;
(c) Murder which is perpetrated by use or detonation of a bomb or explosive device;
(d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals.
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies;
(f)Murder which is perpetrated by the killing of any elected official of a county, municipal, state or federal government with knowledge that the victim was such public official.

BROOM, Justice,

dissenting:

Because of the large number of errors (some being errors of a most serious nature) which transpired at the trial of this cause, it cannot be said that the accused was afforded a proper trial. Therefore, I dissent from the majority opinion which in effect applied the “harmless error rule” to the most serious type case known to our jurisprudence: a death penalty case.

Although being unwilling to affirm the death penalty in this case because of errors in the trial, my view is not that the ghastly and grave crime for which Bell was tried and convicted would not justify the death penalty. Indeed, the murder which he perpetrated or helped perpetrate may properly be said to be of sufficient cruelty and malice to be the basis on which to adjudicate that he has forfeited his right to live, but that is not the question before us. All of us are committed to uphold the constitution and laws of this state, including the law that permits infliction of the death penalty in cases such as demonstrated by the facts before us. Nevertheless, even in cases where one commits the most heinous type murder, such a person, although not entitled to a perfect trial, should be afforded a trial free from any substantial or serious error before he is put to death. Although it is well established that in the instant case Bell, the accused, participated in an atrocious killing • of another human being, the record of his trial shows two very serious and substantial errors together with a number of lesser errors. The record before us consists of three volumes — some of the proceedings (including the voir dire of jurors) were not placed in the transcript. Court appointed counsel represented the accused.

One instruction told the jurors that if they found that “the defendant was engaged in the criminal act of armed robbery or kidnapping,” they should find Bell guilty of capital murder. Another instruction told the jurors that “you do not have to know that the defendant is guilty” in order to convict him. Both of these errors are of such serious nature that either one of them constitutes reversible error according to pri- or cases of this Court involving less than the death penalty.

Even though proper argument in behalf of Bell as regards these instructions was not made at trial level or on appeal, I cannot agree to order his execution upon the record before us. There is deeply ingrained in the law of western civilization the requirement that all substantial prerequisites of the law should be adhered to as a predicate to the execution of a human being. Infliction of capital punishment is so awesome and carries with it such utter finality that it should not be exacted where serious substantial errors occur in a trial. Should this man be put to death in spite of the errors we all recognize as occurred in the trial below (they are undenied and obvious), I would have a lingering dissatisfaction because here it cannot be said with confidence that the accused was accorded his fundamental right to trial without serious error. I am unwilling to say that any serious error, where the death penalty is to be inflicted, is “harmless error.” Every requirement of the law is meaningful and must have attached to it a certain dignity even where one is on trial for a simple misdemeanor. The apex of our adversary system has to be a case where, as here, the prosecution seeks to have the accused executed — such a case requires at least substantial compliance with established rules.

Referred to already, the first instruction is so patently erroneous and misleading that no authority need be cited to establish its taint. It simply is a bobtailed command that the accused should be found guilty of capital murder once the jurors became convinced beyond a reasonable doubt that he “was engaged in the criminal act of armed robbery or kidnapping.” (Emphasis added). It authorized conviction for merely engaging in either of two other offenses and is reversible error. Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941). No instruction, however worded, could be more lacking in legality and proper guidance to jurors.

The second instruction referred to, that “you do not have to know that the defendant is guilty” before he may be convicted was condemned and held to be reversible error in a long line of cases, none of which involved the death penalty. Kidd v. State, 258 So.2d 423 (Miss.1972), a manslaughter conviction; Gilleylen v. State, 255 So.2d 661 (Miss.1971), a murder case; Kent v. State, 241 So.2d 657 (Miss.1970), a case of shooting into a dwelling house; Nobles v. State, 241 So.2d 826 (Miss.1970), a burglary case; Spencer v. State, 240 So.2d 260 (Miss.1970), a drug abuse case; Pryor v. State, 239 So.2d 911 (Miss.1970), an armed robbery case; McGill v. State, 235 So.2d 451 (Miss.1970), a manslaughter case. This Court having heretofore ruled so clearly and recently that any conviction (even for much lesser crimes) where such instruction is given must be set aside, now has fixed an execution in this case in spite of the instruction again having been given. The majority opinion states that our holding this instruction to be reversible error in previous cases was in instances where the conviction “was based upon circumstantial evidence or predominately circumstantial evidence.” My perusal of the decisions shows that we have never said in any of them that the taint or defect of “the don’t have to know instruction” will be judged according to whether the evidence is “circumstantial or predominantly” so. Indeed, we have held that circumstantial evidence may in certain instances be the strongest of all types of evidence. In its concluding paragraph, the majority opinion states that a “majority of the justices are of the opinion that beyond a reasonable doubt the verdict” would have been the same absent the faulty instructions. On that basis the admittedly erroneous instructions are now in effect approved on the basis of a subjective standard, i. e., opinion of the justices that the jurors were not influenced by faulty instructions.

We held in McHale v. Daniel, 233 So.2d 764 (Miss.1970), that an erroneous instruction on a material issue cannot be cured by a proper instruction. The following established principle of the law is found in 1 Reid’s Branson Instructions to Juries, § 138 (repl.ed.1960), at page 399:

A prejudicial instruction cannot be cured by a correct instruction which does not call the jury’s attention to the prejudicial instruction.

It is to be noted that neither of the erroneous instructions under discussion was corrected by another instruction which called to the jury’s attention the prejudicial instruction. True enough, other instructions given the jury were correct and arguably could be said to have adequately and properly instructed the jury except for the two grossly erroneous instructions which were not corrected by any other instruction directing to the jury’s attention either of the two prejudicial instructions. Indeed the very content of the two instructions would render their correction impossible by other instructions.

There are other, lesser, errors in this record. Neither the order of conviction or anything else in the record shows that the jury which convicted Bell was even sworn at all, much less that they were specially sworn. This is true even though Mississippi Code Ann. § 13-5-73 (1972), dealing with cases which carry the death penalty, requires a special oath be given jurors in a case of this type. The record is also deficient by its failure to show that the defendant was present throughout the trial. On either one of these errors noted in this paragraph, standing alone, I would not suggest reversal. My view is that we must, in a case where the death penalty is at issue, carefully consider the entire record and the sum total of every deficiency. Ignominious to the defendant, though possibly good news to citizenry untrained in the law, is the infliction of the death penalty in a case ' so brutal as this. Nevertheless, we must see that even the most vile, wretched and hardened of all criminals is given a trial, sentence, and judgment in which he is accorded an appropriate measure of decorum together with adherence to established precedents which cover the law with rectitude and respect. The majority opinion has injected a most peculiar and novel holding into our jurisprudence. Previous requirements of the content of jury instructions have been relaxed in the most serious of all cases (death penalty), by invoking a subjective standard, i. e., how much attention the justices think the jurors paid to faulty jury instructions. Should execution of an accused depend upon how this Court second guesses twelve jurors’ reaction to or application-of fundamentally erroneous instructions? The more prudent and judicious answer is: It should not.

In a case where criminal conviction carries with it the death penalty, the requirements of due process include jury instructions not previously held to be reversible error. No suggestion is made here that Bell be exonerated or acquitted but, in view of the two serious errors (faulty jury instructions) pointed out which must be considered along with other lesser errors, it cannot be said that he was properly and fairly tried. Under these circumstances, he should be tried by another jury.

PATTERSON, C. J., ROBERTSON, P. J., and COFER, J., join in this dissent.

      . As part of his assignments of error, Bell argues that the construction given the capital murder statute in Jackson was unconstitutional as a violation of separation of powers and that the statute as applied to him through the Jackson decision constitutes a violation of the prohibition against ex post facto laws. Both issues were argued and resolved adversely to Bell in a previous case, Bell v. State, 353 So.2d 1141, 1143 (Miss.1977).

      . There was conflict in the testimony as to whether Bell was seventeen or eighteen years of age.


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    MISSISSIPPI STATE TAX COMMISSION v. ILLINOIS CENTRAL GULF RAILROAD COMPANY et al.
    No. 50167.
    Supreme Court of Mississippi.
    June 14, 1978.
    Rehearing Denied Aug. 9, 1978.

      Daniel, Coker, Horton, Bell & Dukes, Curtis E. Coker, B. Stevens Hazard, Jackson, for appellant.
    Wise, Carter, Child, Steen & Caraway, Sherwood W. Wise, William M. Dalehite, Jr., Richard D. Gamblin, Richard B. Wilson, Jr., Jackson, for appellees.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

The Mississippi State Tax Commission appeals from a decree of the Chancery Court, First Judicial District of Hinds County, Honorable J. C. Stennett, presiding, reversing the findings and assessments made by it against Illinois Central Gulf Railroad Company, The Alabama Great Southern Railroad Company, Louisville & Nashville Railroad Company, and St. Louis-San Francisco Railway Company. We reverse the chancellor and reinstate the orders and assessments of the Mississippi State Tax Commission.

The only question involved is whether or not the chancellor erred in permitting the railroads to use the market value of their shares of capital stock as the basis for determining the value of their capital, and whether or not he erred in finding that the railroads had overcome the presumption of correctness of the book value of capital.

In 1972, the railroads filed their respective corporate franchise tax returns with the Mississippi State Tax Commission which showed the book value of capital as follows:

Gulf, Mobile & Ohio Railroad Company $151,256,158
Illinois Central Railroad Company 616,167,662
Southern Railway Company 734,785,886
The Alabama Great Southern Railroad Company 101,010,760
Louisville & Nashville Railroad Company 547,681,172
St. Louis-San Francisco Railway Company 241,296,720

Acting pursuant to Section 9318, Mississippi Code Annotated (1942) [Mississippi Code Annotated § 27-13-11 (1972)], which provides the procedure for organizations having cause to believe the calculations required by the prescribed returns do not properly reveal the true franchise tax to be due as measured by the value of the capital, the railroads filed petitions and affidavits setting forth the true value (according to them) of their capital, and they paid the following taxes:

Gulf, Mobile & Ohio Railroad Company ; 60,267.50
Illinois Central Railroad Company 158,524.00
Southern Railway Company 6,895.00
The Alabama Great Southern Railroad Company 15,785.00
Louisville & Nashville Railroad Company 8,100.00
St. Louis-San Francisco Railway Company 18,345.00

The Commission rejected the railroads’ valuations and assessed additional taxes as follows:

Gulf, Mobile & Ohio Railroad Company $ 34,572.50
Illinois Central Railroad Company 142,321.00
Southern Railway Company 8,720.00
The Alabama Great Southern Railroad Company 57,222.50
Louisville & Nashville Railroad Company 17,492.50
St. Louis-San Francisco Railway Company 25,692.50

In order to resolve the question now before the Court, it is necessary to place a construction on two statutes relating to corporate franchise taxation and to determine the legislative intent expressed in said sections.

Mississippi Code Annotated Section 27-13-9 (1972) provides:

“The tax imposed, levied, and assessed, under the provisions of this chapter, shall be calculated on the basis of the value of the capital employed in this state for the year preceding the date of filing the. return, whether a calendar year, or fiscal year, except where otherwise provided in this chapter, measured by the combined issued and outstanding capital stock, surplus and undivided profits; provided, that in computing capital, surplus and undivided profits, there shall be included all true reserves, including all reserves other than for definite known fixed liabilities which do not enhance the value of assets; and amounts designated for the payment of dividends shall not be excluded from such calculations, until such amounts are definitely and irrevocably placed to the credit of stockholders, subject to withdrawal on demand; provided, however, there shall not be included in the value of the capital stock any sums representing debts, notes, bonds and mortgages due and payable; nor depreciation reserves, bad debt reserves, nor reserves representing valuation accounts. But in no case shall the franchise tax so computed be less than ten dollars for the period covering which the return is filed. In no case shall the determined capital in Mississippi be less than the assessed value of the real estate and tangible personal property in Mississippi for the year preceding the year in which the return is due.”

Mississippi Code Annotated Section 27— 13-11 (1972) provides:

“In all cases for the purpose of determining the amount of capital, the book value as regularly employed in conducting the affairs of the corporation shall be accepted as prima facie correct as to the true capital of the organization.
If any organization has cause to believe that the calculations required on the return prescribed are not sufficiently informative- or do not properly reveal the true franchise or excise tax to be due as measured by the value of the capital of that organization, or shall feel aggrieved at the requirements upon it for information or tax, then such organization shall have the right to file with the commissioner a petition and affidavit signed as returns are by this chapter required to be signed, setting forth the facts showing the true value of its capital.” (Emphasis added).

The precise issue is whether the language contained in Section 27-13-11 permits a taxpayer to prove value by any method of valuation insofar as the method properly reflects true value, or whether the language means that the taxpayer may show only that book value is incorrect as to (1) the value of its combined issued and outstanding capital stock, (2) its surplus as shown on its books, (3) the undivided profits, as shown on its books. We hold that the statute means what it says, and that value of capital cannot be measured except by the three items enumerated in the statute.

The method used by the railroads in arriving at the value of their capital, was to value the shares of stock sold on the stock exchange each month during the year 1971 and then to multiply that average by the total outstanding stock. The result was designated by the railroads as true value of the capital. It can be seen at once that such a method of valuation fluctuates, is inaccurate, and does not meet the requirements of the statutes.

In State v. Bisso Realty Company, 184 La. 579, 167 So. 87 (1936), the Louisiana Court held that capital stock as used in the taxing statutes of Louisiana (which statutes are similar to the Mississippi statutes) is not the same as “shares of capital stock.” The Louisiana Court declined to permit the corporation (Bisso) to substitute “the book value of the shares of capital stock” for the “book value of capital stock.” The Bisso court cited State v. Xeter Realty, 182 La. 414, 162 So. 29 (1935), as follows:

“The statute not only definitely states what we have construed it to mean, but it is apparent that the Legislature was seeking to provide a clear and definite plan under which the franchise tax could be levied and collected. The members knew that the value of the ‘capital stock’ as reflected on the corporation’s books could be expeditiously determined. On the other hand, they realized that, in order for the state to ascertain the book value of the shares of stock of the corporations of this state would lead to an infinite amount of work, requiring numberless employees, experts, and accountants, with resulting delay and expenses which must inevitably adversely affect the fisc of the state. A conclusion wholly undesired and distinctly against public welfare. Certainly, the members of the Legislature in amending the law were trying to provide a more simple and practical way of raising revenue. Surely it was not their intention to make the law more involved and cumbersome.” 184 La. at 598-599, 167 So. at 93.

In State Tax Commission v. Mississippi Power & Light Company, 194 Miss. 260, 11 So.2d 828 (1943), the Court permitted a corporation to show that because a certain item (an unamortized debt discount) had no true value, and was carried on the books only to keep them in balance, the item should not be considered “capital used, invested or employed within this state” for purposes of the franchise tax law. The Court stated that the item did not fall “within the formula insisted upon as required by Section 6, which requires that it ‘be calculated on the basis of the value of the capital employed * * * measured by the combined issued and outstanding capital stock, surplus and undivided profits.’” 194 Miss. at 267, 11 So.2d at 829. That case lends support to the position that the value can be determined only with reference to the three items stated, capital stock, surplus and undivided profits. This Court considered the effect of Section 9317, Mississippi Code Annotated (1942) [Mississippi Code Annotated § 27-13-9 (1972)] in Scott Building Supply Corporation v. State Tax Commission, 235 Miss. 22, 108 So.2d 557 (1959), and said:

“It can be readily seen that the statute does not provide that the tax shall be calculated on the basis of ‘the invested capital, earned or paid in surplus and undivided profits’, but on the basis of ‘the value of the capital employed in this State for the year preceding the date of filing the return, * * * measured by the combined issued and outstanding capital stock, surplus and undivided profits;’ and that ‘in computing capital, surplus and undivided profits, there shall be included all true reserves, including all reserves other than for definite known fixed liabilities, which do not enhance the value of assets.’
It is the value of the capital employed in this state which is protected by the government and the laws of this state, that is to be used as the basis upon which the tax is to be calculated.
In the case of Craig v. Columbus & Greenville Railway Co., 192 Miss. 461, 467, 5 So.2d 681, this Court said in regard to the franchise tax: ‘While this tax is not on property as such, it is based on the value of property in which the corporation’s capital is invested. Consequently, of what this property consists and its value must be ascertained before the payment of the tax can be coerced in any manner * *
In the case of Southern Package Corporation v. State Tax Commission, 195 Miss. 864, 873, 15 So.2d 436, which was another franchise tax case, the Court in its opinion said: ‘Corporations enjoy privileges and immunities not possessed by natural persons, and for the security and protection, by its laws and authority, of such privileges and immunities, the state, for revenue and as a quid pro quo, may levy upon corporations which carry on any substantial part of their business activities in the state, an exaction called a franchise tax. The amount of the franchise tax and the mode of the measurement thereof are matters which rest within legislative discretion, when not burdensome or oppressive and when solely for revenue. The usual mode of measurement is to look to the amount of the capital of the corporation employed or so situated as to be privileged to be employed in the state, and in determining the amount of the capital, the total of the capital stock, stated surplus, and undivided profits of the corporation is used pri-ma facie as a determinative factor. Such, as to the features mentioned, is our Franchise Tax Law, Chapter 121, Laws 1934.’ The Court also said in that case: ‘The capital of a corporation is its tangibles, the aggregate of its property and assets of all kinds, while its capital stock is the evidence of rights in such property. * * * It is immaterial, therefore, what name or characteristic the particular capital stock which represented this timber may have or what rights it confers inter sese — it is enough, so far as the franchise tax is concerned, that it represents or evidences capital used, invested, or employed within this state, and it is undisputed that all the capital timber which this stock represents is situated within this state.’” 235 Miss. at 34-35, 108 So.2d at 562-563.

The method used by the railroads in averaging the market value of their shares of stock to determine the true value of the capital of the corporations is not authorized by the statutes. The railroads did not attempt to use the measure set forth in the statute nor did they address themselves to those items. Consequently, the provision of Section 27-13-11 that the book value as regularly employed in conducting the affairs of the corporations shall be accepted as prima facie correct as to the true capital of the organizations, was not rebutted and the assessments of the Commission must be held as true and correct. .

The judgment of the chancery court, therefore, is reversed and the orders of the Mississippi State Tax Commission are reinstated.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


text:
    LUTHER McGILL, INC. and the Travelers Insurance Company v. Elbert L. KELLY.
    No. 50421.
    Supreme Court of Mississippi.
    July 12, 1978.
    Rehearing Denied Aug. 9, 1978.
    Gibbes, Graves, Mullins, Bullock & Ferris, Brooke Ferris III, Laurel, for appellant.
    J. Ronald Parrish, Laurel, for appellee.
    Before ROBERTSON, P. J., and SUGG and BROOM, J.
   REVERSED AND ORDER OF WORKMEN’S COMPENSATION COMMISSION REINSTATED.

PATTERSON, C. J„ SMITH, P. J., and WALKER, LEE, BOWLING and COFER, JJ.


text:
    W. D. McNAIR d/b/a McNair Lounge v. James W. KOONCE.
    No. 50708.
    Supreme Court of Mississippi.
    July 12, 1978.
    Rehearing Denied Aug. 9, 1978.
    Laurel G. Weir, Philadelphia, for appellant.
    Self, Jordon & Jones, Robert D. Jones, Meridian, for appellee.
    Before PATTERSON, C. J., and WALKER and LEE, JJ.
   AFFIRMED.


author: BROOM, Justice,

text:
    SHERIDAN, INC. v. C. K. MARSHALL & COMPANY, INC., et al.
    No. 50433.
    Supreme Court of Mississippi.
    July 12, 1978.

      Gray, Montague, Jackson & Pittman, R. A. Gray, III, Hattiesburg, for appellant.
    Aultman, Pope, Aultman & Tyner, Lawrence C. Gunn, Jr., Hattiesburg, for appel-lees.
    Before ROBERTSON, P. J., and SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court:

Mississippi’s Long-Arm Statute is highlighted by this action of Sheridan, Inc. (appellant), a Mississippi corporation domiciled in Forrest County, Mississippi, and engaged in the financing business. In the circuit court of that county, Sheridan sued appel-lees, C. K. Marshall & Company (Marshall & Co. herein) and C. K. Marshall, Jr., individually (Marshall herein) for default of Marshall & Co. on payments due Sheridan under a “finance lease.” Both appellees (Florida residents) moved to dismiss the suit on the ground that the trial court lacked in personam jurisdiction over them.

Sheridan conducts its financing business mainly in the State of Mississippi, but also operates in other southeastern states through its sales representatives, who periodically call upon equipment suppliers to solicit business. Marshall & Co. is engaged in a multimillion dollar construction business in Florida. Its owner, Marshall, also serves as president. In 1974, Marshall & Co. became interested in purchasing certain computer equipment from Eldorado Elec-trodata Corporation, and to obtain this equipment entered into a “finance lease” agreement with Sheridan. In order to obtain the financing from Sheridan, Marshall, in the State of Florida, executed a guaranty contract in favor of Sheridan under which he individually and personally guaranteed full payment and timely performance of Marshall & Co.’s obligations under the lease agreement (contract). The contract provided that it would not be effective until accepted by Sheridan. After Marshall’s guaranty was delivered to Sheridan in Hatties-burg, Sheridan accepted the lease finance agreement and it became effective April 11, 1974.

Subsequent to the acceptance of the lease finance contract and the guaranty instrument, Sheridan purchased the computer equipment from Eldorado Electrodata Corporation and had it delivered to Marshall & Co. in the State of Florida. The contract provided for sixty monthly rental payments of $1,043.53, to be paid at Sheridan’s office in Hattiesburg. Marshall & Co. defaulted after making only one payment, and on October 11, 1974, Sheridan reclaimed the computer equipment, the possession of which Marshall & Co. voluntarily surrendered. After taking it to Hattiesburg, Sheridan sold the equipment at public auction and then filed this suit for the deficiency under the lease. In the contract was a clause which read:

12. In the event suit is brought to enforce the terms of this lease, the parties hereto agree that any court of competent jurisdiction situated in the City of Hattiesburg, Forrest County, Mississippi, shall have venue of such action, and that the interpretation and legal effect of this lease shall be governed by the laws of the State of Mississippi .

Specifically predicating in personam jurisdiction over Marshall and Marshall & Co. upon the “single-contract” clause of the Mississippi Long-Arm Statute, Sheridan’s declaration (in its fourth paragraph) alleges:

4. The instant action is founded upon, and seeks enforcement of, contractual obligations of the Defendants in favor of the Plaintiff, to be performed by the Defendants within the State of Mississippi; and the Defendants may thus be subjected personally to the jurisdiction of this Court by service of process in the manner provided by Mississippi Code 1972 Annotated § 13-3-57 (1972).

Process for Marshall and Marshall & Co. in this suit was by substituted service upon the Secretary of State as prescribed by the Long-Arm Statute.

In their motion challenging the in person-am jurisdiction of the Circuit Court of Forrest County, Marshall & Co. and Marshall, individually, relied mainly on the theory that they were not doing business in Mississippi. Nowhere in their motions did they allege that they had not entered into a contract with Sheridan to be performed partly in Mississippi. The trial court sustained the motion to dismiss.

The Mississippi Long-Arm Statute, .Mississippi Code Annotated § 13-3-57 (1972), is pertinent here and provides:

Any nonresident person . . . who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed . equivalent to the appointment by such nonresident of the secretary of state of the State of Mississippi . to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any such nonresident . . .. (Emphasis added).

After this case was dismissed below by the trial court and while its order of dismissal was pending here, we decided Shackelford v. Central Bank of Mississippi, 354 So.2d 253 (Miss.1978). Shackelford states:

Here, both instruments provided that they be performed (paid) in the State of Mississippi, and they were accepted by appellee in Mississippi. The trial court had jurisdiction under the Long-Arm Statute, and the first assignment of error is without merit.

The record shows that execution of the contract by the parties occurred largely in Mississippi following telephone negotiations initiated in this state. It is true that Marshall & Co. and Marshall, individually, executed the instruments in Florida, but they were then delivered to Sheridan in Forrest County, Mississippi, where acceptance by Sheridan was necessary before they were to become effective. Sheridan’s performance of its obligations under the contract was completed when it purchased the computer equipment and had it delivered to Marshall & Co., after which the only remaining performance to be done was for Marshall & Co. to make rental payments to Sheridan in Forrest County. Marshall & Co. partially performed its part of the contract in Mississippi when it forwarded the first rental payment due under the instrument to Sheridan in Forrest County, Mississippi. Also to be noted is the fact that in dealing with Sheridan, Marshall, individually, and Marshall & Co. knew that they were dealing with a Mississippi corporation and that any agreement executed by the parties had to be accepted by Sheridan in Forest County, wherein payment was to be made upon the instrument. Accordingly, we hold that these events give the State of Mississippi justifiable interest in the transaction and, under Shackelford, the motion to dismiss should not have been sustained.

As to whether application of our Long-Arm Statute against Marshall and Marshall & Co. denies them due process under the Fourteenth Amendment of the Constitution of the United States as argued by them, the language used by the United States Supreme Court in McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226 (1957), is applicable. There the court stated:

It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State. Cf. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Henry L. Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097; Pennoyer v. Neff, 95 U.S. 714, 735, 24 L.Ed. 565. The contract was delivered in California, the premiums were mailed from there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.

Roberts v. Worthen Bank & Trs. Co., 183 So.2d 811 (Miss.1966), is a case in which we relied upon McGee v. International Life Ins. Co., supra, and held that a Mississippi citizen who borrowed from an Arkansas bank “had sufficient minimal contacts with the state of Arkansas” so that an Arkansas court could render judgment against him. Therefore, we must reverse and remand for trial on the merits.

On the question of whether or not the contract was to be performed in whole or in part by any party in the State of Mississippi, see the case of Miller v. Glendale Equip. & Supply, Inc., 344 So.2d 736 (Miss.1977).

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.


author: WALKER, Justice,

text:
    Mrs. Betty TRAINER v. Johnnie L. GIBSON, Jr. and Central Paper Company, Inc.
    No. 50299.
    Supreme Court of Mississippi.
    July 12, 1978.
    Rehearing Denied Aug. 9, 1978.

      Robertshaw & Merideth, H. L. Merideth, Jr., Greenville, for appellant.
    Lake, Tindall, Hunger & Thackston, E. Spivey Gault, Greenville, for appellees.
    Before PATTERSON, WALKER and COFER, JJ.
   WALKER, Justice,

for the Court:

This is an automobile personal injury case. Betty Trainer brought a negligence suit against Johnnie L. Gibson, Jr. and Central Paper Company, Inc. in the Circuit Court of Washington County, Mississippi. Upon trial, the jury returned an award of damages for the plaintiff, Betty Trainer, against both defendants in the amount of $10,000. The plaintiff appeals from that decision, assigning three errors, all concerned with instructions.

The issues presented on appeal are:

(1) Was it error to grant a contributory negligence instruction to the defendant Gibson based upon the facts of this case;

(2) Was the contributory negligence instruction defective for failure to specify the facts constituting the alleged contributory negligence; and

(3) Did the court err by failing to grant a peremptory instruction that defendant Gibson was guilty of negligence.

The jury in its verdict found both plaintiff and defendants guilty of negligence but went on to award plaintiff $10,000 in damages. Based upon that verdict, the facts as accepted by the jury were:

Gibson driving a truck in a northerly direction, stopped at a red light with a green right turn arrow. Trainer, meanwhile was approaching the same intersection from the west, headed in an easterly direction. Trainer had a green light, however, she also had her right turn signal on and slowed down somewhat as she approached the intersection. Gibson, allegedly thinking she was going to turn right, proceeded to turn to his right and when Trainer did not turn right but continued on through the intersection, a collision occurred.

I.

Appellant contends that it was reversible error to grant a contributory negligence instruction without defining what facts could constitute contributory negligence or without referring to any other instruction which defined the alleged contributory negligence.

The instruction reads:

The Court instructs the jury that if you find from a preponderance of the evidence that Johnnie L. Gibson, Jr., was guilty of negligence which contributed to the accident and the plaintiff’s injuries, if any, but you also find from a preponderance of the evidence that Mrs. Trainer was, herself, guilty of negligence which contributed to the accident and her injuries, if any, then you must reduce the damages which you would otherwise award to the plaintiff in such proportion as her negligence, if any, bears to the entire negligence involved.

We have stated on several occasions that an instruction charging negligence or contributory negligence must define those acts which would constitute such. Jones v. Craft, 218 So.2d 727 (Miss.1969); Rayborn v. Freeman, 209 So.2d 193 (Miss.1968); Gore v. Patrick, 246 Miss. 715, 150 So.2d 169 (1963).

We have also held that even though failure to do so is error, it is harmless error where another instruction correctly informs the jury what facts constitute negligence. Gore v. Patrick, supra.

Thus, if another instruction correctly defines negligence, the error would not ordinarily be reversible.

II.

Appellant contends that the contributory negligence instruction was defective for failure to specify the facts constituting the alleged contributory negligence. In the present case, the only instruction which makes any attempt to define contributory negligence is Instruction D-4, which is attacked by appellant on the grounds that it improperly defines the law with regard to negligence in failing to turn when giving a signal to do so. The instruction reads, in part, as follows:

. if you find from a preponderance of the evidence that as Mrs. Trainer approached this intersection in this case she was signaling for a right turn, and in violation of that signal, she proceeded straight through the intersection, then Mrs. Trainer was negligent. If you further find from a preponderance of the evidence that Mrs. Trainer’s negligence if any was the sole proximate cause of the accident, then your verdict must be for the defendants, Johnnie L. Gibson, Jr., and Central Paper Company.

Appellant first contends the failure to turn after having given a signal to do so is simply not negligence and therefore cannot be the basis for an instruction on contributory negligence. We disagree, however, we do agree that the instruction as given improperly sets out the law with regard to when such action may constitute negligence.

Some jurisdictions have held that giving a turn signal and failing to turn cannot be called negligence as a matter of law. Romans v. Duke, 313 Ky. 157, 230 S.W.2d 439 (1950); Timmins v. Russomano, 14 Ohio St.2d 124, 236 N.E.2d 665 (1968). We note, however, that neither jurisdiction is a comparative negligence state and as Dean Pros-ser has so aptly pointed out, courts in which a finding of contributory negligence is a bar to recovery have been reluctant to hold that a plaintiff’s conduct is contributory negligence as a matter of law. Prosser, Law of Torts § 67, p. 433 (4th ed. 1971). Mississippi is, however, a comparative negligence state and the jury is entitled to consider the degree of negligence of both parties in assessing damages. We therefore hold that the jury in this case would have been warranted in finding Trainer contributorily negligent in failing to turn after having given a signal to do so upon first finding certain facts to have been present.

This situation was considered by the United States Court of Appeals in Jones v. Concrete Ready-Mix, Inc., 464 F.2d 1323 (5th Cir. 1972). That court in a well-reasoned opinion construing what the law in Mississippi would be were the issue presented, held that failure to turn may be negligence if there were presented a jury issue on four factors, e. g.:

Where the party on the favored highway who failed to turn,

(1) Was flashing his turn indicator lights;

(2) Was driving in the right hand lane;

(3) Was slowing down as he approached the intersection; and

(4) Was actually beginning to. turn his vehicle. (464 F.2d at 1325).

We agree with this interpretation with slight modifications.

Insuch a situation, negligence may be shown if a jury finds the party on the favored highway failed to turn, and:

(1) Was flashing his turn indicator lights;

(2) Was driving in the right hand lane; and

(3) Was slowing down to such an extent as to cause someone in the less preferred highway to reasonably believe a turn was being made; or had actually begun to turn the vehicle and then failed to complete the turn whether he had slowed his vehicle or not.

Sincethe instruction complained of failed to accurately state those facts that the jury must find in order to constitute negligence, the case must be reversed and remanded for a new trial.

III.

The appellant contends that the court erred by failing to grant a peremptory instruction that defendant Gibson was guilty of negligence. Although not reversible error, since there was ultimately a verdict for plaintiff, for purposes of retrial we hold that the plaintiff should have been granted a peremptory instruction on the issue of liability. Mississippi Code Annotated section 63-3-309(4)(a) (1972) requires that where there is a traffic light which is red with a green turn arrow, as was the ease here, “Vehicular traffic facing such signal may cautiously enter the intersection only to make movement indicated by such arrow but shall not interfere with other traffic . . ..”

The defendant Johnnie Lee Gibson, Jr., testified that he stopped at the light and that he saw Trainer’s car approaching the intersection approximately one-half block away. He further stated her right turn signal was on and that she appeared to be slowing down. Based upon those facts, he assumed Trainer was going to turn right at the intersection and therefore pulled out in front of her without again looking in her direction to determine her movement.

Since section 63-3-309(4)(a) (1972) requires that the entrance be cautious and since it further requires that the entrance shall not interfere with other traffic, and since Trainer was clearly on the preferred highway with a green light, we hold that Gibson was not justified in relying on Trainer’s turn signal and was negligent as a matter of law under the circumstances in not continuing to look for the hazard of Trainer’s approaching automobile. See Buford v. Horne, 300 So.2d 913 (Miss.1974). Trainer may have been guilty of contributory negligence, but such contributory negligence, if any, would only diminish the amount of damages to be awarded her. To hold otherwise might encourage misplaced reliance on turn signals in dangerous situations.

The judgment of the circuit court is affirmed on the question of liability of Johnnie L. Gibson, Jr. and Central Paper Company, Inc., but remanded for a new trial on the question of contributory negligence of Mrs. Trainer, if any, and her damages.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: ROBERTSON, Presiding Justice,

text:
    Michael Lee SPRINKLE and Carol Lloyd Sprinkle v. STATE of Mississippi.
    No. 50565.
    Supreme Court of Mississippi.
    July 12, 1978.
    Rehearing Denied Aug. 9, 1978.

      Self, Jordan & Jones, Daniel P. Self, Jr., Meridian, Dan R. Wise, Hattiesburg, W. E. Andrews, Jr., Purvis, for appellants.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and BROOM, JJ.
   ROBERTSON, Presiding Justice,

for the Court.

A joint indictment against Michael Lee Sprinkle, Carol Lloyd Sprinkle and Richard Malcolm McNeil was returned by the grand jury of the Circuit Court of Lamar County, Mississippi, charging them with the crime of delivery of a controlled substance (marijuana). The Sprinkles moved for and were granted a severance.

After a full trial, they were found “guilty as charged”. Michael Sprinkle was sentenced to serve ten years in the State Penitentiary and his wife, Carol, was sentenced to serve a term of five years.

The Sprinkles assign as error:

I. The lower court erred in overruling the Motion to Quash the Indictment and the .Demurrer to the Indictment.
II. The lower court erred in refusing to grant a directed verdict of not guilty after the State rested or to grant the Motion to exclude the evidence and direct a verdict of not guilty when the appellants rested.
III. The verdict of the jury was contrary to the law and the evidence in the case and the lower court should have sustained the Motion for Judgment Notwithstanding the Verdict and/or the Motion for a New Trial.
IV. The lower court erred in granting State’s instruction number 5.

On June 17, 1977, James R. Kelly, an agent of the Mississippi Bureau of Narcotics, made arrangements to purchase 100 pounds of marijuana from Ricky McNeil. Kelly took $10,500 to McNeil’s residence at 4409 Bay View Drive, in the Westover First Addition in Lamar County, because McNeil wanted to see the money before he would go any further with procuring the marijuana in Mobile, Alabama. Arrangements were made by Kelly to meet McNeil at his residence on Bay View Drive at 8:30 p. m. on June 18, 1977, to close the sale.

Agent Kelly, with Agents Dickey and Blackledge hidden in the back of the van, drove to McNeil’s residence and parked so that the rear of the van would face the rear of McNeil’s car.

The testimony was that Mike and Carol Sprinkle had escorted McNeil from Alabama to his residence in their 1969 Plymouth Fury with an Alabama license tag.

When Kelly said “Let’s see some dope”, McNeil opened the trunk of his car where Kelly saw a burlap bag and a white cloth bag. McNeil had trouble opening the white cloth bag, so Mike Sprinkle took over, opened the bag and handed Kelly a kilo brick of a substance which was later identified by Toxicologist Williams as being marijuana. Carol Sprinkle was standing next to Agent Kelly when the delivery was made by her husband, Mike, and when McNeil asked the question: “You all ready see some money?”, Mike and Carol Sprinkle and Ricky McNeil all nodded in the affirmative. Kelly opened the door to the van and Agents Dickey and Blackledge got out and secured the area, and helped Kelly with the arrests.

The defendants contend that the indictment should have been quashed because Mrs. Betty Rose Breazeale, the wife of Sheriff Marvin Breazeale of Lamar County, served as bailiff of the grand jury that indicted the defendants, and that Sheriff Breazeale assisted in the arrest of the defendants and testified as a witness at the trial. It is very clear to us, after a careful reading and study of the record, that Mrs. Breazeale served purely in a ministerial capacity and did not exert or attempt to exert any influence whatsoever on the grand jury in its deliberations.

She made coffee and placed it in the jury room before any of the grand jurors arrived. At no time did she enter the jury room during their deliberations. At no time did she talk with any of the jurors about any case. She stationed herself at the door of the grand jury room and notified witnesses when the district attorney or county attorney asked her to. She opened the door of the jury room for the witness to enter. There is no merit in this assignment of error. See Southward v. State, 293 So.2d 343 (Miss.1974); State v. Bacon, 77 Miss. 366, 27 So. 563 (1900).

The Sprinkles next contend that the state failed to prove venue, that the defendants committed a crime in Lamar County, Mississippi. Agent Kelly testified that the delivery took place at McNeil’s home at 4409 Bay View Drive in Lamar County, Mississippi, and that he also arrested the defendants at McNeil’s home. Sheriff Breazeale testified that Bay View Drive was in Westover First Addition, and that this subdivision was in Lamar County. A certified copy of the plat of Westover First Addition showing Bay View Drive was introduced into evidence. The plat shows on its face that it is a subdivision of lands in Lamar County, Mississippi, and the certificate of the Chancery Clerk of Lamar County shows that the plat was recorded in the Land Records of Lamar County, Mississippi. There is no merit in this assignment of error.

In their third assignment of error, the Sprinkles argue that no crime was proved against them. The evidence shows that the Sprinkles were closely and inextricably connected with Ricky McNeil in the whole transaction, having escorted him in their car from Alabama to his home in Mississippi. When McNeil had difficulty in opening the cloth bag, Mike Sprinkle stepped forward, promptly opened the bag, and handed Agent Kelly a sample brick of marijuana. Mrs. Sprinkle at the time was standing next to Agent Kelly, and closely observing the whole transaction. They nodded affirmatively when Agent Kelly asked if now they wanted to see some money. The evidence fully supports the verdict of the jury against the Sprinkles.

In their fourth assignment of error, the defendants contend that the court erred in granting state’s instruction number 5 which allowed the jury to return a general verdict of “Guilty as Charged” for either “delivery of a controlled substance” or “possessing a quantity of marijuana with intent to deliver.” Defendants admit that the indictment charged only the one offense of delivery, and that the error was in the instruction granted.

In Criddle v. State, 250 Miss. 328, 165 So.2d 339 (1964), this Court said:

“An indictment charging burglary and larceny, two separate and distinct crimes, is good and the jury may acquit of burglary and convict of larceny; but if the verdict is a general one it will be regarded as a conviction of burglary alone. Clanton v. State, 211 Miss. 568, 52 So.2d 349. By the same reasoning we hold that where one is charged with forgery and uttering, he may be acquitted of forgery and convicted of uttering, but if the verdict is a general one, it will be regarded as a conviction of forgery.” 250 Miss. at 332-33, 165 So.2d at 341. (Emphasis added).

It is clear from the record that there was an actual delivery of almost 100 pounds of marijuana. Upon the return of a guilty verdict, the court sentenced the defendants for delivery of marijuana.

The court was correct in sentencing the defendants for delivery of marijuana only. We note also that the punishment set by the legislature for each offense is the same. So the defendants were not prejudiced in any way by this instruction.

There being no reversible error committed, the conviction and sentence of each defendant are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Lonnie WILLIAMS v. V. W. SAVELL.
    No. 50860.
    Supreme Court of Mississippi.
    July 19, 1978.
    Rehearing Denied Aug. 9, 1978.
    Laurel G. Weir, Philadelphia, for appellant.
    Alford, Mars & Thomas, Robert L. Thomas, Philadelphia, for appellee.
    Before PATTERSON, C. J., SMITH, P. J., and WALKER, J.
   AFFIRMED.


text:
    Mrs. Kathryn (Roberts) BURTON v. Leon ROBERTS.
    No. 50746.
    Supreme Court of Mississippi.
    July 19, 1978.
    Rehearing Denied Aug. 9, 1978.
    Jimmie H. Fields, Meridian, for appellant.
    No brief filed for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    Barney LEWIS v. BRIGHT HOMES, INC. and First National Bank of Jackson.
    No. 50457.
    Supreme Court of Mississippi.
    July 26, 1978.
    Pritchard, Myers & Gordon, Martin Heg-wood, Pascagoula, for appellant.
    Frank J. Hammond, Jr., Moss Point, Ar-vis V. Cumbest, Pascagoula, for appellees.
    Before ROBERTSON, P. J., SUGG and COFER, JJ., and DENNIS M. BAKER, Commissioner.
   AFFIRMED.


text:
    Roberta M. NEELY v. Thomas A. NEELY.
    No. 50441.
    Supreme Court of Mississippi.
    July 26, 1978.
    Pritchard, Myers & Gordon, Martin Heg-wood, Pascagoula, for appellant.
    Watts & Bilbo, Pat H. Watts, Jr., Pasca-goula, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    Fantine HARPER v. STATE of Mississippi.
    No. 50483.
    Supreme Court of Mississippi.
    July 26, 1978.
    Scales & Scales, Fred T. Rucker, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    In the Interest of Perry RAGLAND, by and through next friend and mother, Ruby Ragland.
    No. 50717.
    Supreme Court of Mississippi.
    July 26, 1978.
    Rehearing Denied Aug. 9, 1978.

      Christopher A. Tabb, Charles H. Ram-berg, Brandon, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    Cleve JONES v. STATE of Mississippi.
    No. 50744.
    Supreme Court of Mississippi.
    July 26, 1978.
    A. Vincent Blackwell, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    James E. THAMES v. STATE of Mississippi.
    No. 50572.
    Supreme Court of Mississippi.
    July 26, 1978.
    Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


text:
    Archie STUART et ux. v. J. E. CARTER et al.
    No. 50328.
    Supreme Court of Mississippi.
    July 26, 1978.
    Edward L. Cates, John C. Underwood, Jr., Jackson, for appellants.
    Green, Cheney, Hughes & McKibben, Charles E. Hughes, Jackson, for appellees.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    Jan OVERSTREET v. STATE of Mississippi.
    No. 50544.
    Supreme Court of Mississippi.
    July 26, 1978.
    Alton Massey, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and COFER, JJ., concur.


text:
    Theodis DOSS v. STATE of Mississippi.
    No. 50554.
    Supreme Court of Mississippi.
    July 26, 1978.
    Michael J. McCormick, Starkville, for appellant.
    A. F. Summer, Atty. Gen., by Pete-J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and COFER, JJ., concur.


text:
    Jerry HILL v. STATE of Mississippi.
    No. 50467.
    Supreme Court of Mississippi.
    July 26, 1978.
    Paul Abston, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, LEE and COFER, JJ., concur. ,


text:
    Lenora DOCKERY, Administratrix of Estate of Tommy Lee Dockery, Jr., Deceased v. LeDEVELOPMENT COMPANY, INC., American Development Corporation and Noble Crigler.
    No. 50397.
    Supreme Court of Mississippi.
    July 26, 1978.

      Dulaney & Dulaney, William P. Dulaney, Tunica, for appellant.
    Sullivan, Smith, Hunt & Vickery, Elzy J. Smith, Jr., Luckett, Luckett, Luckett & Thompson, William 0. Luckett, Sr., Clarks-dale, for appellees.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    Lenora DOCKERY, Administratrix of Estate of James Edward Dockery, Deceased v. LeDEVELOPMENT COMPANY, INC., American Development Corporation and Noble Crigler.
    No. 50398.
    Supreme Court of Mississippi.
    July 26, 1978.
    Dulaney & Dulaney, William P. Dulaney, Tunica, for appellant.
    Sullivan, Smith, Hunt & Vickery, Elzy J. Smith, Jr., Luckett, Luckett, Luckett & Thompson, William 0. Luckett, Sr., Clarks-dale, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    William Lawrence HOPKINS v. Dorothy Louise HOPKINS.
    No. 50305.
    Supreme Court of Mississippi.
    July 26, 1978.
    Reid & Hewitt, Gertrude A. Reid, Biloxi, for appellant.
    Larry L. Lenoir, Gulfport, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR CLARIFICATION.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and COFER, JJ., concur.