author: WALKER, Justice, for the Court:

text:
    W. C. GRIFFIN v. STATE of Mississippi.
    No. 49279.
    Supreme Court of Mississippi.
    Nov. 9, 1976.
    Rehearing Denied Dec. 7, 1976.

      Claude A. Chamberlin, Aberdeen, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice, for the Court:

W. C. Griffin was tried and convicted of felonious shoplifting under Mississippi Code Annotated section 97-23-45 (1972) in the Circuit Court of Monroe County, Mississippi. He was sentenced to a term of three years in the state penitentiary, two of which were suspended. Upon rejection of his motion for a new trial, he brings this appeal to this Court.

Griffin assigns as error the court’s rejection of his motion to suppress all evidence obtained by the police from their on-the-scene search and interrogation of the appellant. This assignment presents the question of whether the circumstances constituted “custodial interrogation” so as to necessitate the giving of the warnings outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). His other assignments of error have been considered and are without merit.

On November 30, 1974, Mrs. Wynette Byars, the proprietor of Panetta’s store in Aberdeen, Mississippi, observed Griffin and two other males in her store. The three looked through a table of men’s slacks and departed without making a purchase. Fifteen minutes later, she saw Griffin across the street in front of Bergman’s store. Mrs. Byars testified, “W. C. [the defendant] was standing at the corner of Bergman’s Store and one other male subject walked up with a paper bag in his hand and each of them taken out some men’s slacks and put into the paper bag.” On cross-examination, she admitted that she could not be certain from that distance whether the items involved actually were slacks. After this incident, Mrs. Byars called the police and reported her observations.

In response to that call, Officers Johnny Kendrick and Wallace Dobson soon appeared at Panetta’s. Mrs. Byars pointed to Griffin, who was walking down the street, and the officers thereupon went to confront him. The subsequent events are best described by Officer Kendrick’s testimony, which was substantially confirmed by other evidence in the case:

Q. And what did you say to him when you confronted him, Officer Kendrick?
A. I asked him what he had in the bag there.
Q. What did he say?
A. He didn’t say anything. He just showed it to me.
Q. What did he do, then, if he didn’t answer you?
A. He just opened the bag up for me. Q. Did he take anything out?
A. There were two pair of pants in the bag.
Q. What happened next?
A. I asked him if he had a receipt for the two pair of pants he had.
Q. What did he do?
A. He didn’t say anything — yes, he did. He said he — he said yes. And he pulled out his wallet and took out a layaway card.
Q. Did the layaway card have any name on it?
A. No, not that I can recollect.
Q. Did the paper bag have any store name on it?
A. No.
Q. Would you describe that bag?
A. Just a brown paper bag; it was ripped.
Q. What happened after he showed you this layaway card?
A. Well, I asked him where he did get the pants. And he didn’t say nothing. Oh, yes, he did.. He said he got them at a store but he didn’t know the name of the store.
Q. What happened then?
A. I asked him if he would go with us to a store.
Q. And did he say he would go or what did he do to indicate one way or the other?
A. When I asked the question, he started moving with me.
Q. Which way?
A. To Panetta’s store.
Q. What happened when you went in?
A. We confronted Mrs. Byars; she was behind the desk there; and the pants were produced on the table. And I asked her if those pants were hers.
Q. And what did Mrs. Byars say about those pants?
A. She said that they weren’t her pants; didn’t come from the store.
Q. What happened next?
A. I seen that W, C. Griffin had something in his coat. You could see that something was bulging out of his coat that he was wearing. I asked him if he wouldn’t mind taking out what he had in his coat. And he did so.
Q. What did he say or what did he do?
A. Well, he didn’t say nothing. He just took it and put it on the desk there.
Q. What did he take out?
A. One pair of pants.
Q. Did Mrs. Byars look at that pair of pants?
A. Well, not right then. Mr. Dobson said to take out what he had on the other side.
Q. Did he tell him to take them out?
A. No, he did not.
Q. And did W. C. Griffin take that second pair of pants out from under his coat?
A. Yes, he did.
Q. Now, did Mrs. Byars look at those two pair of pants?
A. Yes.
Q. And what did she say about those?
A. She couldn’t identify them as being hers.
Q. All right. What was said or what was done next?
A. Well, since she couldn’t identify them as being hers, I asked him where did the pants come from.
Q. What did he say?
A. He just—he started walking toward the door and we followed. He went right across the street to Bergman’s.

After it was determined that the pants had come from Bergman’s, Griffin was arrested and subsequently indicted for felonious shoplifting. At the time of the arrest, Officer Kendrick read Griffin the Miranda warnings for the first time. Griffin did not take the stand to present his version of the facts or to deny the account related by the officers either in the hearing on his motion to suppress or at the trial on the merits.

Griffin argues vigorously that the police had no right to stop him for questioning and that all evidence obtained as a result thereof should be excluded. We find no merit in this contention. This Court has recognized “that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest.” Singletary v. State, 318 So.2d 873, 876 (Miss.1975). This investigatory procedure has been approved by the Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Here, the suspicious circumstances observed by Mrs. Byars certainly justified the original stop.

However, Griffin further contends that the police had a duty, under these circumstances, to give him the Miranda warnings. Miranda requires that a suspect be advised of his Fifth Amendment right to silence and his Sixth Amendment right to counsel as a prerequisite to police interrogation “after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. Our task, then, is to determine the point at which an investigatory detention, approved by Terry, becomes a custodial interrogation so as to require that a suspect be advised of his rights.

The Supreme Court of the United States has made clear that the Miranda warnings are required whenever a suspect is actually under arrest, Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), but has given no other suggestion of their application in the infinite variety of street encounters between policemen and private citizens. However, the Court has recognized that a valid distinction does exist. In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), a case concerning an investigatory stop involving minor traffic violations, the Court noted in dictum that “these situations are . immeasurably far removed from ‘custodial interrogation’ where in Miranda v. Arizona, supra, we found that the Constitution required certain now familiar warnings as a prerequisite to police interrogation.” Id. at 232, 93 S.Ct. at 2050, 36 L.Ed.2d at 865. Recognizing the distinction, the Court has left it to the various jurisdictions to determine under the facts of a given case whether “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Griffin contends that, because police had focused their investigation solely upon him, they had a duty to advise him of his rights. This concept of “focus” stems from Escobedo v. Illinois, 378 U.S. 478, 490-91, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977, 986 (1964). However, the Supreme Court has recently declared that the Escobedo rule is subsumed in the Miranda rule; the police have focused on a suspect when and only when they have taken him into their custody. Beckwith v. United States, 425 U.S. 341, 344-47, 96 S.Ct. 1612, 1615-16,48 L.Ed.2d 1, 6-8 (1976). Therefore, the only inquiry in the case sub judice is whether, at the time the police questioned Griffin as to where he had gotten the pants, he had been “deprived of his freedom of action in any significant way.”

Griffin seems almost to contend that the mere presence of police officers in an investigatory context in a street encounter is so inherently coercive as to require the delivery of the Miranda warnings. Such a rule would seriously impede the necessary investigatory work of our police. It is not required by the implications of Miranda, and we decline to adopt it.

Griffin, in his brief, argues that the police are required to deliver the Miranda warnings at such time as they have probable cause for arrest. This rule has been rejected by the Supreme Court of the United States in a Sixth Amendment context:

There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause. (Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374, 386 (1966)).

The rule suggested by Griffin would unduly hamper police investigation, trapping them between the requirements of the Fourth and Fifth Amendments. Other possible rules are considered and rejected in La-Fave, “Street Encounters” and the Constitution: Terry, Sibron, Peters and beyond, 67 Mich.L.Rev. 39, 100-06 (1968).

The whole point of Miranda was not to hinder police interrogation but to prevent coercion and intimidation of suspects to obtain confessions and admissions from them. The ultimate purpose, of course, was to preserve a defendant’s right under the Fifth Amendment to the United States Constitution that he “shall [not] be compelled in any criminal case to be a witness against himself.” Miranda certainly never intended that a person, even though suspected of a crime or accused of a crime, cannot voluntarily cooperate with police officers. In this case, the record shows that the police officers dealt courteously with Griffin and in no way coerced or intimidated him, unless it could be said that their mere presence during the street encounter amounted to coercion, which proposition we have already rejected.

Griffin was under no physical or verbal restraint and made no attempt to leave or terminate the interview, but rather cooperated with the officers. He was not coerced or intimidated. He was merely caught, and gave no testimony to the contrary.

We would point out that when a defendant raises the issue of custodial interrogation in a motion to suppress statements made without benefit of the Miranda warnings, the State will have made a prima facie case at the hearing that the accused was not in custody if an interrogating officer testifies that the accused was not under arrest and was under no physical or verbal restraint from leaving or terminating the interview. If the accused then fails to go forward and show an arrest, physical or verbal restraint from leaving or terminating the interview, or some other unusual circumstance indicating a deprivation of his freedom of action in some substantial way, so as to make out a question of fact to be decided by the court, then the inquiry on that issue should terminate. The accused is required to take the initiative because the prosecution and the court are entitled to know what fact or facts, if any, constituting “custody” are in controversy, so as to avoid needless expenditure of judicial time. If the defendant’s evidence creates a question of fact, then the prosecution has the burden of proving that the accused was not deprived of his freedom in any significant way and, consequently, there was no custodial interrogation requiring the Miranda warnings. The determination of this question is by the court and not the jury.

In this case, the inquiry on the motion to suppress, there being no other issues, could have been terminated after the first officer testified. A prima facie case that Griffin had not been in custody had been established and the accused did not present any evidence to create a question of fact to be resolved by the court.

We conclude that the evidence derived from the interrogation of Griffin was properly admitted at trial, and his conviction must be affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


source: Caselaw Access Project

author: ROBERTSON, Justice, for the Court:

license: Public Domain

text:
    ABC FINANCE CORPORATION v. AUDITOR OF PUBLIC ACCOUNTS, State of Mississippi.
    No. 49528.
    Supreme Court of Mississippi.
    Nov. 16, 1976.
    Rehearing Denied Dec. 7, 1976.
    Young, Scanlon & Sessums, E. Stephen Williams, James Leon Young, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Jean R. Richey, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ROBERTSON, Justice, for the Court:

ABC Finance Corporation filed with the Auditor of Public Accounts of Mississippi its claim for refund of an additional privilege tax assessed against it and paid under protest to the State Tax Commission. The State Auditor, on advice of the Attorney General, disapproved the claim for refund. ABC thereupon appealed to the Chancery Court of the First Judicial District of Hinds County, which court affirmed the decision of the State Auditor denying the refund.

ABC is a finance company engaged in the business of lending money on tangible personal property located in Mississippi. The payment of these loans is secured by trust instruments on the personal property. A privilege tax is levied on such a finance company under the provisions of Mississippi Code Annotated section 27-21-3 (1972), which Section provides:

“There is hereby levied an annual statewide privilege tax upon every person, firm, corporation, or association, other than banks, state or national, doing business of lending money secured by mortgages, trust receipts, retained-title or purchase contracts, on motor vehicles, furniture, refrigerators containing mechanical freezing units operated by gas or electricity, or radios or any other tangible personal property, located in the State of Mississippi, or doing a business of purchasing, discounting, or otherwise acquiring notes, trust receipts, or other forms of indebtedness secured by liens, in the form of mortgages, retained-title or purchase contracts, or other liens, upon motor vehicles, furniture, refrigerators containing mechanical units operated by gas or electricity or other fuels, or radios or any other tangible personal property, located in this state (not including, however, cotton, cotton seed or agricultural products); the amount of said tax to bear a direct relationship to the value of the securities held, owned, or acquired by such person, firm, corporation or association, and exacted in return for the protection afforded by the government and laws of this state in the enjoyment of such ownership and rights acquired thereby; the tax to be computed by application of the rate hereinafter set out to the total value of such securities, other than those securities representing loans for the payment of the wholesale sales price and those securities representing transactions known as ‘floor plan,’ upon which no tax is to be imposed. Provided, however, that the tax imposed in this chapter shall not apply to persons, firms or corporations engaged in the general mercantile business, who make advancements of money, merchandise and supplies to their customers and who take mortgages, deeds of trust or other liens upon personal property to secure the payment of the indebtedness thus incurred.” (Emphasis added).

Other pertinent statutes involved are Sections 27-21-5 and 27-21-7. Section 27-21-5 provides:

“The annual rate by which the amount of the tax hereby levied shall be computed shall be one-fourth of one per centum of the total amount of indebtedness secured by tangible property located in the State of Mississippi.” (Emphasis added).

Section 27-21-7 states:

“The tax hereby levied shall be paid quarterly, one fourth of the annual tax being payable on or before beginning business, and one-fourth thereof within thirty days after each subsequent three-months period. For the first quarter-annual period, beginning on the effective date of this chapter, the amount to be paid before doing business shall be estimated, and within thirty days after the expiration of said quarter-period, the taxpayer shall determine the actual amount due on account of such business done during said first quarterly period, by applying the proper rate to the value of evidences of debt acquired in said period; and if the estimated amount theretofore paid is less than the actual amount found to be due, the balance shall be paid within thirty days after the expiration of said period. If the estimated amount already paid exceeds the actual amount found to be due, then the taxpayer shall take credit for such excess on subsequent payments. After the first quarter-annual period, the amount of the tax shall be based upon business done during the preceding quarter, and payments shall be made within thirty days after the expiration of each quarter period.”

ABC’s contentions are succinctly stated in its “Claim for Privilege Tax Refund”:

“The only questions involved in this claim are a matter of law, i. e. (a) whether ABC’s tax basis for the tax period should include the total finance charges made by ABC; and (b) whether ABC’s tax basis for the tax period should include amounts used to refinance previous loans made by ABC and for which the finance company privilege tax had previously been paid.”

No testimony was taken, the litigants stipulating to the following facts:

“1. The face amount of notes taken by ABC on loans which were secured by personal property during the tax period of June 1, 1974, to May 31, 1975, inclusive, totaled $382,583.19.
“2. The amount of unearned finance charges included in the face amount of said notes taken by ABC during the tax period totaled $115,192.58.
“3. The portion of the ‘amount financed’ on new loans made by ABC secured by personal property during the tax period in question used to pay the balance of loans previously made and held by ABC totaled $108,055.74.
“4. Attached hereto as Exhibit 1 is a true copy of an installment promissory note, disclosure statement, and security agreement of one of the loans included in the tax period in question and is representative of all such loans. From this exhibit $1,920.00 is the face amount (included in the $382,583.19 total in paragraph 1 above); $551.01 is the finance charge (included in the $115,192.58 total in paragraph 2 above); and $193.30 is the portion of the amount financed used to pay the balance on a previously made ABC loan (included in the $108,055.74 total set forth in paragraph 3 above).
“5. If ABC’s contention that the finance charge should not be included in the base to which the one-quarter of one percent tax is applied is correct, ABC is entitled to a refund of $287.98. If ABC’s contention that the portion of the amount financed used to pay the balance on a loan previously made and held by ABC should not be included in the base to which the one-quarter of one percent tax is applied is correct, it is entitled to a refund of $270.13. If ABC’s contention on both points is correct, it is entitled to a refund of $558.11.
“6. If ABC’s contention is incorrect on both points, it is entitled to no refund.”

In enacting the “Finance Company Privilege Tax” laws (Sections 27-21-1 through 27-21-19), the Mississippi Legislature is somewhat in the position of a lawyer trying a case. It cannot put all parts of the law in one section; neither can a lawyer ask for all of the facts of a case in one question to a witness. A predicate must be laid; certain preliminary facts must be brought out. And so it is with tax legislation. It becomes necessary to determine the purpose of each portion of a statute in order to arrive at the intent of the legislature.

The purpose of Section 27-21-3 was to define with specificity the type of business upon which the tax was levied. It was not the purpose of Section 27-21-3 to set the exact percentage of the tax, nor was it its purpose to define with exactitude the amount upon which the tax would be figured. This section described the two indispensable factors in the formula for computing the tax in general terms only, “the rate hereinafter set out”, “the total value of such securities.”

The sole purpose of Section 27-21-7 was to provide that the tax would be paid in quarterly installments. It went into detail as to how the first quarterly installment should be estimated inasmuch as it had to be paid in before the finance company could begin business. Again these general terms were used to describe the two factors in the computation process, “by applying the proper rate to the value of evidences of debt acquired in said period.”

The only purpose of Section 27-21-5 was to specifically define the two factors to be used in computing the exact amount of the tax. Section 27-21-5 did this clearly, positively and unambiguously, when it provided:

“The annual rate by which the amount of the tax hereby levied shall be computed shall be one-fourth of one per centum of the total amount of indebtedness secured by tangible property located in the State of Mississippi.” (Emphasis added).

“The total amount of indebtedness” means only one thing, and that is the total of the face amounts of all notes or evidences of indebtedness. The intent of the legislature being crystal clear from the language used, there is no room for construction or interpretation of this statute.

The chancery court was correct in affirming the decision of the State Auditor. The court’s decree denying a refund is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Willie L. REDD v. STATE of Mississippi.
    No. 49409.
    Supreme Court of Mississippi.
    Nov. 23, 1976.
    Roger W. Mathes, Greenwood, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Leflore County; Arthur B. Clark, Judge.

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

AFFIRMED.

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


text:
    Ralph SMITH et ux. v. The TOWN CREEK MASTER WATER MANAGEMENT DISTRICT OF LEE ET AL., COUNTIES, Mississippi.
    No. 49013.
    Supreme Court of Mississippi.
    Nov. 23, 1976.
    Parker, Averill & Winston, Roy 0. Parker, Tupelo, for appellants.
    David R. Sparks, Tupelo, for appellee.
   Appeal from Chancery Court, Lee County; James E. Bost, Chancellor.

Before INZER, P. J., ROBERTSON and WALKER, JJ., and JOHN C. LOVE, Jr., Commissioner.

AFFIRMED.


text:
    CITY OF PASCAGOULA, Mississippi v. M. J. GABBARD et ux.
    No. 48981.
    Supreme Court of Mississippi.
    Nov. 23, 1976.
    Melvin L. Mitchell, Pascagoula, for appellant.
    George S. Shaddock, Pascagoula, Daryl A. Dryden, Ocean Springs, for appellees.
   Appeal from Chancery Court, Jackson County; Rex Gordon, Chancellor.

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

AFFIRMED.


author: WOODROW W. BRAND, Jr., Commissioner,

text:
    Donald R. KRON v. John M. VAN CLEAVE.
    No. 48918.
    Supreme Court of Mississippi.
    Nov. 23, 1976.
    Frank E. Shanahan, Jr., Jackson, for appellant.
    J. Boyce Holleman, Gulfport, for appel-lee.
    Before INZER, P. J., SMITH and BROOM, JJ., and WOODROW W. BRAND, Jr., Commissioner.
   WOODROW W. BRAND, Jr., Commissioner,

for the Court:

This suit was filed in the Chancery Court of Jackson County by the appellant to confirm tax title to the following land situated in the City of Pascagoula, Jackson County, Mississippi:

East Six Acres in the NE Corner of NE Vi of NE Vi, Section 6, Township 8 South, Range 5 West, Jackson County, Mississippi, as particularly described in Deed Book 34 at page 436 in the office of the Chancery Clerk of Jackson County, Pascagou-la, Mississippi.

The appellee answered and sought by cross-bill to set aside tax sales conveying subject propbrty to the appellant. The final decree of the chancellor granted the appellee a sixty day period to redeem his title from the City of Pascagoula tax sale, and upon such redemption to have canceled subject tax deeds and subsequent deeds based thereupon.

The appellee, John M. VanCleave, who at the date of the trial was seventy-three years of age, became the record title owner of the land on April 1, 1909. Since then he has continuously paid or had paid County of Jackson and State of Mississippi ad valorem taxes on the land. The appellee resided in Jackson County until moving to his present address at 407 Thayer Street, Little Rock, Arkansas, on June 4, 1948. Shortly after moving, Mrs. Bessie VanCleave, wife of the appellee, wrote the office of the Tax Collector of Jackson County, Mississippi, “To get my tax statements, so they would know my whereabouts.” The record reflects that the appellee maintained contact and communicated with the Tax Collector of Jackson County for the purpose of making timely tax payments on the land. It was through this point of contact that the appellee ascertained that the City of Moss Point levied an assessment on subject property for the year 1957 for the Moss Point Municipal Separate School District. The appellee promptly established contact with the tax collector for the City of Moss Point and duly paid school taxes for each year through and including 1964 when the property was inadvertently omitted from the Moss Point tax roll. Upon not receiving a tax statement for the year 1964, the appel-lee made timely inquiry with reference to the Moss Point school taxes, and it was then that the omission was noted and the appel-lee was issued a supplemental receipt for the payment of the Moss Point Municipal Separate School District taxes for the year 1964, and further notified that thereafter, all real property tax would be paid to Jackson County.

Mrs. VanCleave testified on direct examination:

Q. Did you pay your taxes each year at Moss Point?
A. Yes ... we surely did.
Q. Did you furnish them your address?
A. Yes ... we certainly did.
Q. And didn’t it come a time when you made an inquiry with reference to the Moss Point Taxes? A. Yes . . . in ’64 my tax state-
ment was late, and I didn’t want it to go delinquent.
Q. What did you do then?
A. They sent me over to the City of Moss Point Separate School District, then they sent me my tax statement. Then, I paid the tax statement in full.

Q. Alright . . . what happened after that with reference to Moss Point?

A. They had a note attached to my receipt stating that all real property tax would be paid to Jackson County . April 1964 . . .. Tax Department, it was signed.

The City of Pascagoula added subject property to its assessment roll and first assessed same for taxes for the year 1966. To prepare its assessment rolls, the tax assessor of the City of Pascagoula utilized the 1964 tax rolls of the City of Moss Point. It was from this 1964 Moss Point tax roll that the appellee’s property was omitted. The record does not reflect the source of information whereby the appellee’s property was added to the Pascagoula tax roll, other than to reflect the identical abbreviated description as used both by the Jackson County and City of Moss Point taxing authority. Except as prepared by the Pas-cagoula assessor, the rolls reflected the address of the appellee to be Pascagoula, Mississippi. The deputy tax assessor and deputy tax collector for the City of Pascagoula testified that it was their policy to search the city directory and city utility department listing to ascertain addresses and if none could be so ascertained, then to search the Pascagoula and New Orleans telephone books. Mrs. Flora Holberg, the Deputy Tax Assessor for the City of Pascagoula, and Mrs. Wanda Ransom, the Assistant Tax Collector for the City of Pascagoula, both testifying for the appellant, stated that it is not the policy of the City of Pascagoula to search the records in the courthouse as a source to obtain a correct address of the taxpayer. On September 18, 1967, Charles Hairston purchased subject property for $67.00 at a City of Pascagoula tax sale for delinquent taxes for the year 1966. On September 16, 1968, Charles Hairston purchased subject property for $58.50 at a City of Pascagoula tax sale for delinquent taxes for the year 1967. On July 18, 1969, the Pascagoula City Clerk mailed notice of maturity for 1967 tax sale to John M. Van-Cleave, Pascagoula, Mississippi. Return receipt was had on August 24,1969, marked— “unknown”. On December 22, 1969, the Pascagoula City Clerk issued conveyance to Charles Hairston for the 1967 tax sale. On July 15, 1970, the Pascagoula City Clerk mailed notice of maturity of 1968 tax sale to John M. VanCleave, Pascagoula, Mississippi. Return was had on July 21, 1970 marked “unknown”. On September 2,1970, Charles Hairston conveyed subject land by warranty deed to the appellant Donald Kron. On September 17, 1970, the Pasca-goula City Clerk issued conveyance to Charles Hairston for 1968 tax sale. On September 23, 1970, the warranty deed from Charles Hairston to Donald R. Kron was filed for record in the office of the Chancery Clerk of Jackson County, Mississippi. On October 5,1970, the City Clerk of Pascagoula conveyances of 1969 and 1970 to Charles Hairston were filed of record in the office of the Chancery Clerk of Jackson County. On December 4, 1970, the Tax Collector of the City of Pascagoula mailed tax statement for 1970 city taxes to the appellee, John M. VanCleave, 407 Thayer Street, Little Rock, Arkansas. This statement constituted the first actual notice to the appellee that his property was assessed by the City of Pascagoula.

On January 26, 1971, the appellee mailed payment to the City of Pascagoula for the 1970 taxes and in February 1971, the appel-lee duly made redemption of tax sales for the years 1968 and 1969, which were purchased by other persons. He has thereafter paid City of Pascagoula taxes.

The basic issue before this -Court is whether or not the combination of errors by the taxing authorities, if overlooked, would amount to taking of property without due process. It must be noted here that the tax rolls of Jackson County have continuously reflected the full name and address of the appellee since 1948:

John M. VanCleave
407 Thayer Street
Little Rock, Arkansas;

that the tax rolls of Moss Point, Mississippi, reflected the full name and address of the appellee from 1957 through 1963; that the appellee’s property, name and address were omitted from the 1964 Moss Point tax rolls; that the year 1964 was the final year for assessment for the Moss Point Municipal Separate School District, which tax was paid only after inquiry by the appellee; and, that Jackson County and Mississippi ad valorem taxes were the only assessment on subject property for the year 1965. In 1963, the Chancery Court of Jackson County, Mississippi, entered its final decree annexing the property into the City of Pasca-goula, Mississippi, effective July 1, 1965. All state and county taxes were duly paid by the appellee from 1909 to date.

From the outset this Court has recognized the right of equitable redemption and established the principle that statutes allowing land to be redeemed from tax sales are to be liberally construed in favor of the person seeking to redeem. Darrington v. Rose, 128 Miss. 16, 90 So. 632 (1922).

Although it is incumbent upon taxpayers to be knowledgeable about the assessments on their properties, the law does not require one to do a vain and useless thing. McLain v. Meletio et al., 166 Miss. 1, 147 So. 878 (1933). The facts of that case were that the lands were delinquent for their 1924 ad valorem taxes and on the 6th day of April, 1925, were sold for such taxes and purchased by the state. Part of the lands were in a drainage district; they were delinquent for their drainage taxes for the years 1924 and 1925. On May 4, 1925, they were sold to pay such taxes and were purchased by the commissioners of the drainage district. The lands were not redeemed within two years after such tax sales. The Court in its decision stated that the taxpayer asked the clerk if there were any outstanding tax sales of the land; that the clerk informed him that there were not; the law did not require the taxpayer to make a formal tender; and, that the taxpayer’s offer to redeem from any and all tax sales covered sales for drainage assessment taxes as well as ad valorem taxes.

In the case before us, the appellee upon change of residence, gave notice to the Jackson County Tax Collector and gave him his mailing address. The appellee has paid or had paid state and county ad valorem taxes on subject property each year from 1909 until date. He paid school taxes for Moss Point Municipal Separate School District from 1957 until 1964, the year said school assessments ended. He was advised by taxing authority, as the lower court found: “that after 1964 the subject property would no longer be taxed by Moss Point, and thereafter taxes would be paid to Jackson County.” Jackson County has had on file and its tax rolls have reflected the appellee’s Arkansas address since 1948. The offices of the Tax Assessor-Collector of Jackson County and of the City of Pasca-goula are situated across the street from each other.

The law does not require useless things, but it does require diligent search and inquiry by the taxing authority to ascertain the taxpayer’s usual address or his post office address. Mississippi Code Annotated § 27-43-3 (1972).

The three taxing authorities — Jackson County, City of Moss Point and City of Pascagoula — although separate offices are nevertheless interrelated functions as the same pertains to a given tract of land and an individual landowner-taxpayer. They collaborated in compiling and preparing their respective tax rolls. The City of Pas-cagoula relied upon the rolls of the City of Moss Point and the City of Moss Point relied upon the rolls of Jackson County.

Under the facts in this case the failure of the City of Pascagoula to retrieve all pertinent and relevant data from Jackson County on the same tract of land and landowner, constitutes sufficient clerical error as to take away that taxing authority’s power to convey title to anyone else. The enrolling of appellee’s property by the City on its assessment roll and subsequent sale for non-payment of taxes without mailing notice to the appellee when his usual street and mailing address was readily available across the street at the County Tax Assessor’s office is an excuse for non-payment of the tax so as to permit the appellee to redeem his property upon payment of the taxes, damages and interest. The landowner had the right to presume that the information available to one taxing authority would be ascertained by other taxing authority upon any reasonably diligent search and inquiry to ascertain same as it pertained to his property. Compare Williams v. Scott, 251 Miss. 533, 170 So.2d 621 (1965).

As stated in Carmadelle v. Custin, 208 So.2d 51 (Miss.1968):

There is a combination of errors shown by the testimony in this case committed by the tax gathering authorities which would, if overlooked, amount to the taking of appellees’ home without due process of law. (208 So.2d at 54).

The conscience of this Court was stated in Lewis v. Withers, 44 F. 165 (C.C.S.D. Miss.1890), a case invalidating tax sales, wherein the writer reflected upon a previous decision in favor of the landowner in the case of Richter v. Beaumont, 67 Miss. 285, 7 So. 357 (1889).

This decision is so just that I presume no court will hold to the contrary under a similar state of facts, ... To deprive the defendant of the title of this valuable tract of land under the facts stated, to say nothing about the few dollars paid, would certainly be a hardship and wrong, never contemplated by the legislature.
(44 F. at 167).

All statutes must be measured against the due process requirements of the Constitution. The application of the statute itself must be self-executing.

In Pattison v. Clinghan, 93 Miss. 310, 47 So. 503 (1908), the Court held an unjust or unwise purpose in a statute will not be imputed to the Legislature which enacted it when any other reasonable construction is possible.

For the reasons stated this case is affirmed without reaching the constitutional question decided by the chancellor. It is familiar learning that courts will not decide a constitutional question unless it is necessary to do so in order to decide the case.

AFFIRMED.

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

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: JAMES D. HESTER, Commissioner,

text:
    Karen Jackson GOODE v. CASTLEWOOD ARMS, INC.
    No. 48997.
    Supreme Court of Mississippi.
    Nov. 23, 1976.
    Watkins, Pyle, Ludlam, Winter & Stennis, David W. Mockbee, Jackson, for appellant.
    Ross & Ross, Fred A. Ross, Jr., Jackson, for appellee.
    Before GILLESPIE, C. J., SUGG and BROOM, JJ., and HESTER, Commissioner.
   JAMES D. HESTER, Commissioner,

for the Court:

This appeal is prosecuted from an order of the Circuit Court of the First District of Hinds County, Mississippi, sustaining appel-lee’s demurrer to the amended declaration. The amended declaration charged that Cas-tlewood Arms, Inc. owns an apartment complex in the City of Jackson known as Castlewood Arms, a two-story structure consisting of eight family units, one of which was leased to and occupied’ by the appellant.

Paragraph Three of the amended declaration charges that at the time Castlewood Arms apartments were constructed by ap-pellee there was in full force and effect a municipal ordinance of the City of Jackson, of which Section 3(2)(6), states:

“No apartment building or multiple family dwelling shall be constructed to a height greater than three and one-half stories or forty-five (45) feet, and must be constructed with three (3) hour fire separation between each eight (8) family units, horizontally or vertically, and in buildings of three (3) or more family units a minimum of one (1) hour fire separation throughout the building

In Paragraph Eight of the amended declaration the appellant charges that the damages which she suffered

“ . . . were the direct and proximate result of the tortious and negligent conduct of the Defendant, Castlewood Arms, Inc., in wholly failing to comply with the express terms of the Ordinance of June 1, 1950 and thus negligently and tortiously failing to provide the fire protection to which the Plaintiff and the other occupants of the Castlewood Arms apartments were entitled.”

In Paragraph Nine of the amended declaration it was alleged, alternatively, that appellee constructed and designed Castle-wood Arms apartments, and especially the fire wall between the apartment Nos. 204 and 205, in such a way that they were unreasonably dangerous.

Thus framed, the amended declaration contained a statement of the facts constituting the cause of action, in ordinary and concise language and was sufficient in matter of substance for the court to proceed upon the merits of the cause. The acts and omissions of the appellee, above specified, and correctly described by the pleader as being negligent and tortious, and directly and proximately causing the damages enumerated, were admitted by the demurrer and sufficiently stated a cause of action grounded in simple negligence. Bullock v. Sim Ramsey, Jr. Trucking Co., 207 So.2d 628 (Miss.1968); Tillman v. Richton Tie & Timber Co., 224 Miss. 789, 80 So.2d 745 (1955); Higgins Lumber Co. v. Rosamond, 217 Miss. 1, 63 So.2d 408 (1953).

REVERSED AND REMANDED.

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

      . Sitting pursuant to Chapter 430, Laws c 1976. The above opinion is adopted as the opinion of the Court.


author: BROOM, Justice,

text:
    Cleveland PORTER v. STATE of Mississippi.
    No. 49392.
    Supreme Court of Mississippi.
    Nov. 23, 1976.

      Dyer, Dyer & Dyer, Gaines S. Dyer, Greenville, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before INZER, SMITH and BROOM, JJ.
   BROOM, Justice,

for the Court.

Murder conviction and life imprisonment sentence resulted from trial of defendant (Cleveland Porter, appellant) in the Circuit Court, Second Judicial District of Bolivar County. We reverse.

Two propositions are presented on this appeal. Did the trial court commit reversible error in (1) admitting testimony of an extra-judicial identification of defendant after witness Reed had made a positive in-court identification of him, and (2) permitting the state to amend the indictment by striking language which purported to charge “capital murder?”

The facts show that the deceased, Johnny Gillespie, was found dead from gunshot wounds in the bathroom of a service station at Mound Bayou, Mississippi, on March 1, 1975. State witness Joseph Reed said he was at the station with Gillespie and one Hunter when the defendant came into the station and at gunpoint forced Reed and Gillespie into a bathroom. Within a short time Reed was shot and wounded by the defendant who then took Gillespie out of the bathroom. In the bizarre affray, Reed heard an additional shot after which the defendant forced Hunter to choke the wounded Reed. Hunter was subsequently found dead in a nearby field. According to Reed, he (Reed) was hit on the head and became unconscious. After regaining consciousness in a Jackson hospital, Reed identified defendant as the assailant by means of viewing a large number of pictures of different subjects. The defendant pleaded an alibi which (though corroborated by three witnesses) the jury rejected and found him guilty.

I

During presentation of the state’s case, on direct examination witness Reed made a clear and unequivocal in-court identification of defendant as the perpetrator of the homicide at issue. Then oven precise, timely and clearly stated objection of defense counsel, the prosecution was permitted to elicit from Reed testimony that he (while a hospital patient for injuries inflicted upon him by defendant on the occasion of the homicide) previously identified defendant as the assailant. The purpose of the extra-judicial identification was admittedly for no other purpose than to bolster Reed’s in-court identification. This Court has repeatedly exhorted prosecutors not to offer evidence of such extra-judicial identification. See Butler v. State, 217 So.2d 3 (Miss.1968) and cases therein cited. Accordingly, the defendant must be granted a new trial.

In ordering a new trial we point out that the state’s case depended almost entirely on the testimony of witness Reed who received a serious head injury as part of the episode in which Gillespie was killed. Reed’s mental capacity to recollect the events was in question. These circumstances render more critical and significant his extra-judicial identification of Porter as the murderer of Gillespie. Therefore, it cannot be said (as could in Butler, supra) that admission of “such evidence . . . was harmless error beyond a reasonable doubt.”

II

The indictment, before being amended, charged that the defendant:

did then and there willfully, unlawfully, feloniously and of his malice aforethought, kill and murder one Johnny L. Gillespie, Jr., a human being. While engaged in Commission of Armed Robbery or in violation of Section 97-3-19 Miss.Code Ann. (1972) . . . . (Emphasis added).

By amendment made over the defendant’s objection, the state was permitted to strike the italicized language from the indictment, leaving no more than a charge of murder (not capital) set forth in the indictment.

Argument of the defendant is that the state changed the substance of the indictment by reducing the charge from “capital murder” to “murder.” Significant is the fact that all the ingredients charged by the amended indictment were there before the amendment was made, which merely deleted “while engaged in Commission of Armed Robbery . . . .” It is urged that the indictment before amendment was fatally defective (for failure to specify the subsection of our statute defining capital murder) and not amendable even though no demurrer was filed in this case. Failure of the indictment to specify that the charge was under subsection (2) of Mississippi Code Annotated § 97-3-19 (1972), which defines capital murder, is not a fatal error or ground for demurrer but merely results in a charge of murder (not capital). Varnado v. State, Miss., 338 So.2d 1239, decided November 9, 1976.

Also pertinent to the question of whether the amendment was error is Stevenson v. State, 325 So.2d 113 (Miss.1975). Stevenson dealt with prosecutorial discretion and clearly permits an amendment such as occurred in this case which neither placed any additional burden on the defendant nor prejudiced him in any manner.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


author: SMITH, Justice,

text:
    Mack Elmore BANKS v. Merdith Preston DAWKINS, Jr.
    No. 48950.
    Supreme Court of Mississippi.
    Nov. 23, 1976.

      Stone & Graham, Columbus, Andrew K. Naugle, III, West Point, Rufus Ward, Jr., J. Tyson Graham, Columbus, for appellant.
    Joe 0. Sams, Jr., Columbus, Irvin Conrad Mord, II, Macon, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   SMITH, Justice,

for the Court:

This was an action begun by Mack El-more Banks against Merdith Preston Daw-kins, Jr., in the Circuit Court of Lowndes County and subsequently transferred to the Circuit Court of Noxubee County. Banks sought damages for personal injuries inflicted upon him by Dawkins by shooting him in the head and face with a shotgun. The appeal is from a verdict and judgment for Dawkins.

Banks was the proprietor of a so-called “supper club” at Crawford. On the night of Banks’ injury, he had forced Dawkins to leave the club earlier that same evening because of alleged misconduct on the part of the latter. In the course of ejecting Dawkins there had been a fight and Daw-kins claims to have been struck in the head by Banks with “brass knucks”.

Dawkins’ defense is that he was completely “blacked out” and remembered nothing whatever after he was forced out of the club by Banks. He testified that he did remember the fight and having been compelled to leave the club by Banks. Dawkins’ wife testified that Dawkins had driven home in his pickup truck where he was seen by his wife to have blood on his head and face and was, as she said, “raving”. It is contended that Dawkins then drove himself back to the club in his pickup, carrying a shotgun. When he arrived at the club Banks and several others were inside and Banks was attending to his own business.

Whatever effect Dawkins’ condition may have had upon his recollection of events, apparently it had little or none upon his ability to drive his truck home, drive it back to the club, go to a window through which he thrust the gun and, from among the several persons who were in the club, single out his adversary Banks and shoot him in the face. As the result, Banks sustained the loss of an eye and other injuries.

It appears that the next day Dawkins consulted a doctor, his purpose in doing so and the treatment he received, if any, is not clear, although it does appear that in the fight he had sustained some cuts or abrasions about the face. There is no evidence of skull or brain damage, other than Daw-kins’ own claim not to remember the events after he left the club and, although the doctor’s office was about 15 miles from the place of trial, the doctor was not subpoenaed or called by Dawkins as a witness. There was no explanation by Dawkins of his failure to call him.

It is the general rule in this and other states that, although a person may be suffering from a mental condition so as to be insane, nevertheless he is required to respond in compensatory damages for injuries resulting from his torts. Feld v. Borodofski, 87 Miss. 727, 40 So. 816 (1905). To the same effect see Paxton v. Paxton, 222 So.2d 834 (Miss.1969).

Dawkins’ claim that he lost his memory during the critical times involved is unsupported and inconsistent with his actions.

It was error for the trial court to instruct the jury that, before Banks would be entitled to recover compensatory damages, the jury must find that Dawkins had shot Banks “knowingly”. Even if it is established that at the time of the shooting Dawkins was, in fact, insane to such an extent that he did not know or appreciate the nature or consequences of his act and did not know that it was wrong to shoot Banks, the latter was entitled to recover damages to compensate him for his injuries.

If Dawkins shot Banks “knowingly,” that is, intentionally and while sane, Banks would be.entitled to recover punitive damages also. There was no claim of self-defense nor defense of any kind (save the claim of memory loss) offered by Dawkins for the shooting.

Dawkins’ claim that he lost his memory is unsupported and weak and the injuries he inflicted upon Banks were grievous and severe. We think the verdict of the jury was against the overwhelming weight of the evidence and that the case should be reversed and remanded for another trial.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: SMITH, Justice, for the Court.

text:
    Coleman SUMRALL v. PREFERRED RISK MUTUAL INSURANCE COMPANY.
    No. 48990.
    Supreme Court of Mississippi.
    Nov. 23, 1976.
    Leonard B. Melvin, Jr., Laurel, for appellant.
    Dorrance Aultman, Hattiesburg, for ap-pellee.
    Before PATTERSON, SMITH and LEE, JJ.
   SMITH, Justice, for the Court.

Preferred Risk Mutual Insurance Company exhibited its bill of complaint in the Chancery Court of the Second Judicial District of Jones County against Coleman Sumrall and Paul W. Davis, praying that a decree be entered declaring that Davis was not an insured under its policy of automobile liability insurance issued to Lucille Parker Horn on her automobile.

The complainant alleged: It had issued its policy of automobile liability insurance to Lucille Parker Horn on her automobile, the policy was outstanding and subsisting, Horn had entrusted her car to Davis to be transported by him for repairs, and Horn had specifically instructed Davis not to drive the autombile except for that purpose. It was alleged that, notwithstanding such instructions and in violation thereof, Davis drove the automobile for his own personal purposes and while so doing was involved in a collision with the automobile of. Coleman Sumrall, who was injured as a result. Based upon these alleged facts, complainant charged that its policy of insurance,: a copy of which was exhibited with the bill,- did not cover Davis as an insured as it was alleged that, at the time of the collision, Davis was driving the insured vehicle without permission of the policyholder and named insured, Lucille Parker Horn, and thus was excluded under the provisions of the policy.

A general demurrer was interposed to the bill by Sumrall and was overruled. The chancellor, however, granted an interlocutory appeal to this Court, ostensibly to settle all of the controlling principles of the case, under Mississippi Code Annotated section 11-51-7 (1972).

It is apparent that complainant is asking for a decree in this case declaring that Davis is not covered under its policy issued to Horn and absolving it from liability to pay any judgment that may, at any time in the future, be recovered against Davis as a result of the collision.

Such a decree would be declaratory in nature and run counter to the decisions of this Court, the most recent of which is Hinds-Rankin Metropolitan Water & Sewer Association v. St. Paul Fire & Marine Insurance Company, 289 So.2d 904 (Miss.1974).

The distinguishing characteristics of a declaratory judgment are set out in 22 Am. Jur.2d, Declaratory Judgments section 1 (1965), where it is said:

The distinctive characteristic of a declaratory judgment is that the declaration stands by itself, that is, no executory process follows as of course. In other words, such a judgment does not involve executory or coercive relief. The essential distinction between an action for declaratory judgment and the usual action is that no actual wrong need have been committed or loss have occurred in order to sustain the declaratory judgment action, but there must be no uncertainty that the loss will occur or that the asserted right will be invaded. Thus, the purpose of the declaratory judgment is to permit adjudication of the rights or status of the parties without the necessity of a previous crime or breach. (Emphasis added).

Sumrall, a party involved and injured in the collision and an ostensible claimant, protests that he'is entitled to pursue in the “usual and regular way” any remedy he may have and he objects to having his ultimate right, if any, against the insurer of the automobile, cut off as a preliminary matter in a suit of this kind. Lucille Parker Horn, the policyholder and named insured, was not made a party to this litigation.

§ 4. .Power to Render

Except where authorized by statute, a court cannot, either at law or in equity, entertain an action for, or render, a merely declaratory judgment declaring rights, obligations, or legal relations without awarding any remedial process.
Since a declaratory judgment is of purely statutory creation,, and unknown to the common law, as discussed supra § 2, in the absence of an authorizing statute a court cannot, either at law or in equity, entertain an action for, or render, a merely declaratory judgment declaring rights, obligations, or legal relations without awarding any remedial process; and this rule applied in the federal courts prior to the enactment of the federal declaratory judgments act.
[26 C.J.S. Declaratory Judgments § 4 (1956)].

Mississippi has no statute authorizing the entry of declaratory judgments and this Court has held uniformly over the years that declaratory decrees and judgments will not be entered. Whatever may be the desirability of altering this established policy it is considered that the law in this state is settled and, in the absence of statute or of a most compelling reason, (and no such reason is cited here), any change must come from the Legislature.

The action of the chancellor in overruling the general demurrer was error and is reversed. A decree sustaining the demurrer is entered here and the bill is dismissed, but without prejudice to the rights of any party-

REVERSED AND DISMISSED WITHOUT PREJUDICE.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: GILLESPIE, Chief Justice,

text:
    Carolyn BENSON v. John E. HALL.
    No. 48998.
    Supreme Court of Mississippi.
    Nov. 23, 1976.

      Scales & Scales, Clarence R. Scales, Jackson, for appellant.
    William A. Allain, Jackson, for appellee.
    Before GILLESPIE, C. J., and SUGG and BROOM, JJ.
   GILLESPIE, Chief Justice,

for the Court:

Carolyn Benson sued John E. Hall in the Circuit Court of the First Judicial District of Hinds County alleging that Hall had composed and published two libelous letters concerning the plaintiff. The circuit court sustained a demurrer and dismissed the suit. Plaintiff appealed.

The plaintiff charged in her declaration that the defendant composed and published two letters which were in every particular false, misleading, defamatory, libelous, and unprivileged, and which exposed her to hatred and contempt, and injured her in her good name, reputation, and business. She charged in general terms that the letters were printed, published, and circulated by the defendant “with expressed and implied malice.” No facts concerning malice were alleged. She charged that she was employed at Jackson State University by John E. Hall, the head or chairman of the Department of Reading, and that one letter was addressed to Dr. John A. Peoples, Jr., President of Jackson State University, with a copy to Vice President Williams, and the other letter was addressed to Lee M. Williams, Vice President for administration of Jackson State University. Copies of both letters were sent to the plaintiff. The two letters are as follows:

May 11, 1974
Dr. John A. Peoples, Jr., President
Jackson State University
Jackson, Mississippi
Dear Dr. Peoples:
Shortly after sending Vice President Williams the rating forms on the secretarial help in this department, I sent him a letter requesting that Miss Carolyn Benson not be assigned to this office with the beginning of the new year on July 1, 1974. I explained that Miss Benson does not have the skills essential in secretarial work.
In addition to lack of necessary skills, she cannot or will not follow simple directions; she is most disrespectful when questioned about not carrying out directions or requested to correct mistakes she has made; and she makes no effort to improve her work.
I told her before Christmas that her work would have to improve drastically if she intended to keep the position. She has made no effort, or if she has, she has not improved. Instead of being of some help in carrying on the work of this office, she has been a liability. If it had not been that the secretary employed in Right To Read was willing to assume extra duties, I don’t know what we would have done. We simply cannot use Miss Benson next year.
Yours truly,
/s/ John E. Hall, Head
Department of Reading
cc: Vice President Williams
Miss Carolyn Benson
P.S. In order for you to get the vacation time due you for the time worked in this office, your vacation will begin on June
22. In other words, June 21 will be your last working day in this department. Please collect your personal items to take with you when you leave, and turn your keys in to me on June 21.
/s/ John E. Hall
* * * * * *
May 23, 1974
Mr. Lee E. Williams
Vice President for Administration
Jackson State University
Jackson, Mississippi
Dear Mr. Williams:
If you have looked at the evaluation forms I sent to you rating the secretarial employees in this department, you will see that Miss Carolyn Benson is not qualified for the work. I told her some months ago that we could not use her after June 30, and advised her to be looking for another position.
In addition to being unprepared for the work in so far as secretarial skills are concerned, she cannot relate in a pleasant manner to the teachers. She is most disrespectful when they ask her to correct mistakes she has made; she cannot follow simple directions unless they are written; and she often refuses to do what is asked of her.
Please do not assign her to this department for another year. In fact, unless there is some place where she can work where she has nothing to do but make copies of something already done, she will not be of any use in any office on the campus.
Yours truly,
John E. Hall, Head
Department of Reading
cc: Miss Benson

The Court is of the opinion that the trial judge correctly sustained the defendant’s demurrer. The answers to the two questions next to be made are dispositive of the case.

I.

Were the letters written and mailed to the addressees on an occasion of qualified privilege?

This Court is committed to the rule that although the law guards jealously the enjoyment of a good reputation, public policy, good morals, the interests of society, and sound business principles demand that an employer, or his representative, should be permitted to discuss freely with an employee charges made against an employee affecting the latter’s employment. On such occasions there is a qualified privilege, and statements made within the scope of the privilege, in good faith and without malice, are not actionable. Killebrew v. Jackson City Lines, Inc., 225 Miss. 84, 82 So.2d 648 (1955). In Killebrew the alleged slander occurred in conversation between the superintendent and the employee. The assistant superintendent was present. The Court held that the statement was not actionable because (1) the occasion was one of qualified privilege because the assistant superintendent and the employee (the only persons who heard the statement) were directly interested in the matter; (2) the truth or falsity of the communication was not involved absent bad faith or malice; (3) there was no proof of spite, ill will, malicious purpose, or a wanton or reckless disregard of whether the words were true or false. The Court also held that once the occasion is shown to be one of qualified privilege, there is a presumption of good faith.

The defendant in the instant case sent the letters in question to the President of the University and the Vice President for Administration. Copies were sent to the plaintiff. All of these people were directly interested in the subject matter of the letters for the same reasons státed in Kille-brew.

II.

Did the defendant exceed the scope of the qualified privilege?

The declaration in the present case charges that the letters were composed and published by the defendant “with expressed and implied malice and with design and intent to injure the plaintiff,” but no facts were alleged, only conelusory statements. Edmonds v. Delta Democrat Publishing Co., 230 Miss. 583, 93 So.2d 171 (1957), is authority for the proposition that a charge in a libel suit that the defendant published libelous material “falsely and maliciously or with reckless disregard of the truth” without alleging any facts were mere conclusions of the pleader and were not admitted on demurrer.

It is charged in the declaration that in addition to the addressees the letters were read by “numerous other people who saw the same.”

The eases and the text writers have not always distinguished between the question of whether the privileged occasion was exceeded on the one hand and whether the slander or libel was published on the other. For instance, in Cartwright-Caps Co. v. Fishel & Kaufman, 113 Miss. 359, 74 So. 278 (1917), the Court stated that dictation to a stenographer of an allegedly libelous letter by a businessman addressed to another businessman was not a sufficient publication of the letter to support a suit for libel. In Walter v. Davidson, 214 Ga. 187, 104 S.E.2d 113 (1958), the Court held that there was insufficient publication where communication is made between faculty members concerning students. Both cases confuse the defenses of qualified privilege and non-publication. In our opinion, both cases in substance turned not on the publication issue but on the qualified privilege question.

When qualified privilege is established, statements or written communications are not actionable as slanderous or libelous absent bad faith or malice if the communications are limited to those persons who have a legitimate and direct interest in the subject matter. The qualified privilege may be likened to a circle insofar as its area of protection is concerned. Depending upon the circumstances, the circle encloses those people who have a legitimate and direct interest in the subject matter of the communication, and publication to them is not actionable. If publication is made to persons outside the circle — those not having a legitimate and direct interest in the subject matter of the communication — the protection of the privilege may not be invoked.

There is no allegation that the letters were publicly exhibited nor that any particular persons other than the addressees — who were within the protected circle— read them. The conelusory statement in the declaration that the letters were read by “. . . numerous other people who saw the same” was a mere conclusion of the pleader and was not admitted on demurrer. Edmonds v. Delta Democrat Publishing Co. supra.

We hold that there was no charge that the letters were published beyond the scope of the qualified privilege.

AFFIRMED.

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


author: BLOODWORTH, Justice. JONES, Justice

text:
    In re James F. CARTER v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1561.
    Supreme Court of Alabama.
    Feb. 27, 1976.
    Rehearing Denied Nov. 19, 1976.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
    Jack Livingston and Ronald A. Drum-mond, Scottsboro, for respondent.
   BLOODWORTH, Justice.

Petition of the State, by its Attorney General, for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Carter v. State, 57 Ala.App. -, 339 So.2d 594, wherein that court admitted respondent to bail.

The petition was sought by the State on grounds of: “conflict,” “decision affects a class of state and county officials,” and case of “first impression.” See Rule 39 A.R.A.P. We granted the petition and this cause was submitted on briefs.

It appears that respondent was arrested and committed to Jackson County jail September 19, 1975, to finish serving a three-month sentence upon a former conviction for assaulting an officer. October 1, 1975, he filed a writ of habeas corpus in the circuit court. It was denied by the judge after a hearing on October 7, 1975. Respondent appealed and asked the trial judge to grant bail pending appeal. It, too, was denied. Respondent then petitioned the Court of Criminal Appeals for bail pending appeal. Bail of $500 was granted by that court on October 13,1975. Petitioner-State applied for rehearing which was denied. This petition for certiorari followed.

Section 369 of Tit. 15, Code of Alabama 1940, has been held to be the exclusive remedy for appeal in habeas corpus cases. Bradley v. State, 265 Ala. 463, 92 So.2d 10 (1957).

This section was amended by Act No. 40, Acts of the Legislature, Regular Session 1949, p. 75 (approved June 10,1949) to read as follows:

“ ‘Section 369. (a) Any party aggrieved by the judgment on the trial of a habeas corpus may appeal to the supreme court or court of appeals.
“ ‘(b) The solicitor or other prosecuting officer or attorney may take an appeal on behalf of the State to the supreme court or court of appeals when, on habeas corpus, any person held in custody under a charge of conviction for crime or for extradition as a fugitive from justice from any other State is discharged from custody, or when any person held in custody under an indictment by the grand jury charging him with a capital offence is admitted to bail. In all such cases the judgment must be suspended pending the appeal.
“ ‘(c) Pending the appeal, the person restrained shall be admitted to bail, with sufficient sureties, conditioned that he will appear before such court or officer as may be prescribed by the judge and abide the judgment rendered, provided such person is charged with an offense that is bailable under the laws of this State and is not a prisoner serving his sentence and the judgment appealed from is not a judgment denying his application for bail.
“ ‘(d) No bill of exceptions or assignments of error shall be necessary or required. Within thirty days from the date of judgment, the clerk of the court from which the appeal is taken shall forward a transcript of the record and a certificate of appeal to the supreme court or court of appeals, together with a statement of the evidence and the judge’s ruling thereon, which shall be certified to be correct by the judge or officer hearing the petition. The appellate court shall consider the case on the record and the evidence as set forth. If the judgment of the trial court is correct, the case shall be affirmed. If the judgment is erroneous, the appellate court shall render such judgment as the trial court should have rendered. When so certified, the case on appeal shall be docketed and submitted to and be considered and decided by the appellate court without delay.’ ” [Emphasis supplied.]

The section appears unchanged in the 1958 Recompiled Code except that: the phrase “charge of” in subsection (b) reads “charge or” [sic?]; “transcript of the evidence” was inserted, by legislative amendment in 1955, in place of “statement of the evidence” in subsection (d) and an additional sentence inserted in (d) providing for preparation of the “transcript of evidence.”

It is the general rule that admission to bail pending a review by appeal in a habeas corpus case is statutory. 39 C.J.S. Habeas Corpus § 115 c. Bail. See also Bradley v. State, supra.

Subsection (c) of § 369, supra, clearly permits bail in those certain specified instances when one has won his release and the state has appealed. State v. Jones, 31 Ala.App. 208, 14 So.2d 590 (1943).

Subsection (c) clearly denies bail when one is a prisoner serving his sentence and when the judgment appealed from has denied his application for bail. This is the case here.

Thus, there is no statutory authority to grant bail, pending appeal, in a habeas corpus case on appeal from a denial of relief to petitioner. See Balasco v. State, 52 Ala.App. 99, 289 So.2d 666 (1974) wherein the Court of Criminal Appeals held:

“Title 15, § 369, Code of Alabama 1940, governing appeals from judgments in ha-beas corpus proceedings, does not provide for bail when the judgment is adverse to petitioner . . . .” [Emphasis supplied.]

The soundness of this legislative enactment is manifest. To permit one serving a sentence (in the county jail or penitentiary) to appeal from an adverse ruling on his habeas corpus petition and thus secure his liberty by bond would permit one to gain indirectly that which was directly denied him. See State v. Jones, supra; 39 C.J.S. Habeas Corpus, supra.

The judgment and order of the Court of Criminal Appeals is reversed and remanded for entry of a judgment and order in conformity herewith.

Reversed and remanded.

HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

JONES, J., dissents.

JONES, Justice

(dissenting):

When I am the “1” in an 8 to 1 vote on a case, I strive mightily to see my error and conform my thinking with that of such a weighty majority. My every effort in the case at bar, however, has failed to change my original position. I may not be any more right, but I am no less convinced that this Court is in error in reversing the Court of Criminal Appeals’ order setting bond pending appeal by the defendant;

It is not the rule of law — the “prisoner exception” to the bail statute — with which I disagree. Indeed, the majority opinion does not on its face appear to be erroneous. The first sentence of the third paragraph reads, “It appears that respondent was arrested and committed to Jackson County jail September 19, 1975, to finish serving a three-month sentence upon a former conviction for assaulting an officer.” It is with this factual premise to which the “prisoner exception” is applied that I find myself in disagreement. The “It appears” from that statement of the majority opinion refers to the Sheriff/respondent’s return on the Petition for Writ of Habeas Corpus and the recital by the trial Court denying the petition for bond. But, as his authority for apprehending and holding the defendant, the Sheriff’s reply (in the return on the Petition for the Writ) attached the following:

The trial Court denied the petition for Writ of Habeas Corpus and a petition for bail pending appeal, reciting:

“The defendant being a prisoner under sentence and serving a sentence, the application for bail is denied.”

The facts are simple, yet essential to an understanding of the issue before us:

On October 17, 1974, Carter entered a plea of guilty to the offense of assaulting an officer with a deadly weapon while in the performance of his duties. He was fined $100 and sentenced to imprisonment in the County jail for three months. Carter paid the fine and turned himself in to the Sheriff to begin serving his sentence. He was told by the Sheriff to go home and forget about it. This he did. Eleven months later, the Sheriff, armed with the “Alias Writ of Arrest,” apprehended and confined the defendant in the County jail.

How the “prisoner exception” to the bail statute has any possible application to these facts is simply beyond my power of understanding. This is not to overlook the trial Court’s recital in his order denying bail that “The defendant being a prisoner under sentence and serving a sentence . . .” But this recital cannot overcome a totally void writ of arrest — the only purported legal basis for the Sheriff to hold the “prisoner.” Can the Constitutional guarantee against double jeopardy be circumvented by arresting and confining the defendant on a criminal offense for which he has already been tried without subjecting him to a second trial? Surely, this question is self answering.

It is axiomatic that, for the “prisoner exception” to operate as a denial of bail, there must be something at least purporting to show that the defendant “is a prisoner serving his sentence . . . ” I find it difficult to believe that the majority opinion would allow this showing to be supplied by the Court’s order denying bail. This is not only shifting the burden of proof but permitting the burden to be met by a recital in the judgment of the trial Court.

I would have no difficulty whatsoever in giving the “prisoner exception” a field of operation had the defendant been charged with violating the terms and conditions of his 90-day sentence. For example, had he been charged with escaping from the Sheriff’s custody and the Sheriff’s return on the writ supported this charge, then clearly the “prisoner exception” would have been invoked. Not so, however, when the only authority to hold the defendant is a reissued writ of arrest on a charge to which he has pleaded guilty and been sentenced eleven months earlier.

I realize the majority feels that I am confusing the denial of bail issue with the merits of the habeas corpus appeal. Perhaps so; but how can the two be separated when the practical effect would be to require the defendant to serve his full 90 days or longer while waiting bondlessly in jail only to be told later that his apprehension and incarceration were void? If this is justice under the law, then I can only assume that I am missing some element essential to my proper understanding of the issue.

There is yet another reason for not overturning the Court of Criminal Appeals in this case. In so doing, this Court is saying that, when the Court of Criminal Appeals has pending before it for consideration an appeal in which bond has been denied below, we will reverse that Court’s order fixing bail pending the appeal. As a matter of policy, I would not disturb that Court’s exercise of its prerogative in granting bail during the pendency before it of a habeas corpus appeal.

If we did entertain the review, in my opinion, it would be for the limited purpose in the instant case of doing what the Court of Criminal Appeals should have already done whether acting on the petition for bail or on the habeas corpus appeal; that is, since the record shows on its face that the defendant is being illegally held, he should be ordered released and discharged forthwith.