author: LEE, Justice, for the Court:

text:
    John Buford IRVING, III v. STATE of Mississippi.
    No. 50250.
    Supreme Court of Mississippi.
    Aug. 2, 1978.
    Rehearing Denied Sept. 13, 1978.

      Leonard McClellan, Lewis Myers, Jr., Oxford, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   LEE, Justice, for the Court:

John Buford Irving, III was indicted for capital murder in the Circuit Court of Pon-totoc County. He was given a bifurcated trial following the guidelines set forth in Jackson v. State, 337 So.2d 1242 (Miss.1976). After hearing evidence pertaining to the guilt phase, the jury returned a verdict of guilty as charged. The same jury heard evidence on the sentence phase and unanimously found that the mitigating circumstances did not outweigh the aggravating circumstances, and that appellant should suffer the death penalty. The trial court sentenced him to death.

Gambrell Ray and his wife, Mrs. Opaline Ray, operated a rural grocery store. Their living quarters were housed within the store building. About 8 p. m. on March 3, 1976, they had closed the store and were eating supper in the kitchen when they heard a knock at the store door. Mr. Ray went to the door, and Mrs. Ray heard appellant say, “Mr. Gambrell, I want a pack of cigarettes.” As soon as the door opened, Mrs. Ray heard a gunshot. She picked up a loaded pistol, went to investigate, and saw appellant standing in the doorway with a shotgun. Her husband’s body was lying on the floor close to appellant. Mrs. Ray had known appellant for many years and had seen him in the store earlier that day. She yelled at appellant to get out and fired the pistol at him. He crawled under a store counter, and she fired again, eventually discharging all cartridges. Mrs. Ray decided to leave the store with appellant still under the counter, and when she went into another room, she heard the front door slam and a car leave hurriedly. She tried to use the telephone, but it was inoperable; she then locked the front door after determining that her husband was dead, and went to the nearby home of her daughter where the sheriff and ambulance service were called.

Mississippi State Highway Patrolman William Eubank received a call directing him to the Ray’s country store for the purpose of investigating the homicide. He arrived about 8:15, saw where the store door had been kicked in, found Mr. Ray lying dead on the floor in front of the wooden door, and observed bloody footprints on the inside of the building. A cash box and a double barrel 20-gauge shotgun, both owned by the deceased, were missing.

About 6:30 a. m. the day after the shooting, Essie Pruitt, a friend and neighbor of the Irving family, was approached by appellant, who asked permission to stay at her home. He went into the storage room where she kept her washing machine. Mrs. Pruitt called the sheriff, who immediately came to her home, arrested appellant and took him to jail. Mrs. Pruitt later found a sock full of change in the storage room when she was washing clothes. The double barrel 20-gauge and single barrel shotguns were discovered in a water barrel behind the Tom Franklin barn, approximately two hundred (200) yards from the Ray store.

Sheriff Hubbard testified that appellant told him he stepped inside the store, Mr. Ray went behind the counter to get the cigarettes, and appellant said, “This is a stickup” and that Ray said, “You’re not going to get a damn thing.” Appellant said that Mr. Ray stepped toward him and he shot Ray, that after Mrs. Ray left, he (appellant) came back, kicked open the door and got the change box and 20-gauge shotgun.

I.

The scope of appellate review is broad in capital cases.

We recognize that thoroughness and intensity of review are heightened in eases where the death penalty has been imposed. Augustine v. State, 201 Miss. 731, 29 So.2d 454 (1947). What may be harmless error in a case with less at stake becomes reversible error when the penalty is death. Forrest v. State, 335 So.2d 900 (Miss.1976); Russell v. State, 185 Miss. 464, 189 So. 90 (1939). Therefore, we have given careful scrutiny to the proceedings in the trial below in order to determine whether accused received a fair trial and without necessary regard to whether technical basis for preserving error was made by counsel.

II.

Refusal of the trial court to permit defense counsel to withdraw because of conflicting interest.

Appellant was arrested on March 4,1976, and attorney Léwis Myers, Jr. was retained by him March 8, 1976. On the same date, Myers was retained by Keith Givhan, an accomplice. Appellant and Givhan were indicted for capital murder in separate indictments on July 7, 1976. Appellant entered a plea of not guilty August 2, 1976, pretrial motions were filed August 31, and September 1, 1976 by Myers and his associate, attorney Leonard McClellan.

On November 8, 1976, the day before the case was set for trial, with a special venire of one hundred (100) persons having been summoned, Myers filed a motion to withdraw as counsel claiming a conflict of interest between Irving and Givhan. The trial judge held a hearing on the motion outside the presence of the jury on November 9, 1976, to determine the merits of same. The substance of the motion and a statement made by Attorney Myers was that each defendant gave inculpatory statements about the other, that Irving and Givhan had been talking with several ministers, which resulted in their conversions, that they had been born again, and “It became difficult for me as counsel in attempting to construct a defense, in attempting to give advice to my client because of certain notions, because of certain ideas that he had, allegedly based on this conversion.”

Appellant relies upon Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) and Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426, decided by the United States Supreme Court April 3, 1978.

In Glasser, the Government tried five co-defendants jointly for conspiracy to defraud the United States. Two of the defendants, Glasser and Kretske, were represented initially by separate counsel. On the second day of trial, Kretske became dissatisfied with his attorney and dismissed him. The district judge asked Glasser’s attorney, Stewart, if he would also represent Kretske. Stewart responded by noting a possible conflict of interest, his representation of both Glasser and Kretske might lead the jury to link the two men together. Glasser made known to the court that he objected to the proposal. Nevertheless, the court appointed Stewart to represent Kretske, although he continued as Glasser’s retained counsel. The record disclosed that Stéwart failed to cross-examine a government witness whose testimony linked Glasser with the conspiracy and failed to object to the admission of arguably inadmissible evidence. Such failure was viewed by the court as a result of Stewart’s desire to protect Kretske’s interest and was indicative of Stewart’s struggle to “serve two masters.” The court said:

“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Cf. Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S.Ct. 330, 336, 78 L.Ed. 674; Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749; Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854. And see McCandless v. United States, 298 U.S. 342, 347, 56 S.Ct. 764, 766, 80 L.Ed. 1205. Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court. In conspiracy cases, where the liberal rules of evidence and the wide latitude accorded the prosecution may, and sometimes do, operate unfairly against an individual defendant, it is especially important that he be given the benefit of the undivided assistance of his counsel without the court’s becoming a party to encumbering that assistance. Here the court was advised of the possibility that conflicting interest might arise which would diminish Stewart’s usefulness to Glasser. Nevertheless Stewart was appointed as Kretske’s counsel. Our examination of the record leads to the conclusion that Stewart’s representation of Glasser was not as effective as it might have been if the appointment had not been made. We hold that the court thereby denied Glas-ser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment. This error requires that the verdict be set aside and a new trial ordered as to Glasser.” 315 U.S. at 76, 62 S.Ct. at 467, 86 L.Ed. at 702.

In Holloway, three individuals were indicted jointly on July 29, 1975, on counts of robbery and rape occurring June 1, 1975, in Little Rock, Arkansas. On August 5, the trial court appointed Harold Hall, a public defender to represent all three defendants. They were arraigned and entered pleas of not guilty. Two days later, their cases were set for a consolidated trial to commence September 4. On August 13, Hall moved the court to appoint separate counsel for each petitioner because the defendants had stated to him that there was a possibility of a conflict of interest in each of their cases. After conducting a hearing on this motion and on motions for severance, the Court declined to appoint separate counsel. On September 4, before the jury was impaneled, Hall renewed the motion for appointment of separate counsel on the ground that one or two of the defendants may testify and, if they did, then he would not be able to cross-examine them because he had received confidential information from them. The motion was denied again. On the second day of trial, after the prosecution had rested its case, attorney Hall advised the court that, against his recommendation, all three defendants had decided to testify. He then stated to the court that the conflict which he had brought to the court’s attention before trial was beginning to materialize. Two of the defendants testified without guidance of counsel and without examination by counsel. In reversing the convictions, the United States Supreme Court stated:

“Here trial counsel, by the pretrial motions of August 13 and September 4 and by his accompanying representations, made as an officer of the court, focused explicitly on the probable risk of a conflict of interests. The judge then failed either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel. We hold that the failure, in the face of the representations made by counsel weeks before trial and again before the jury was empaneled, deprived petitioners of the guarantee of ‘assistance of counsel.’
* * * * * *
The State argues, however, that to credit Hall’s representations to the trial court would be tantamount to transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict and to appoint separate counsel. In the State’s view, the ultimate decision on those matters must remain with the trial judge; otherwise unscrupulous defense attorneys might abuse their ‘authority,’ presumably for purposes of delay or obstruction of the orderly conduct of the trial.
The State has an obvious interest in avoiding such abuses. But our holding does not undermine that interest. When an untimely motion for separate counsel is made for dilatory purposes, our holding does not impair the trial court’s ability to deal with counsel who resort to such tactics. Cf. United States v. Dardi, 330 F.2d 316 (CA 2), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964); People v. Kroeger, 61 Cal.2d 236, 37 Cal.Rptr. 593, 390 P.2d 369 (1964). Nor does our holding preclude a trial court from exploring the adequacy of the basis of defense counsel’s representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client. See State v. Davis, supra [110 Ariz. 29, 514 P.2d 1025], In this case the trial court simply failed to take adequate steps in response to the repeated motions, objections and representations made to it, and no prospect of dilatory practices was present to justify that failure.” 435 U.S. at 486-487, 98 S.Ct. at 1178-1180.

In Lugo v. United States, 350 F.2d 858 (9th Cir. 1965), the Court stated:

“It is true that where one attorney represents two codefendants, a conflict of interest which denies one or both of the defendants the effective assistance of counsel is a distinct possibility. When such a conflict exists, the conviction cannot stand. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). On the other hand, absent a conflict of interest which interferes with the proper presentation of the defense of one of the codefendants, the mere fact that both are represented by the same attorney is not grounds for reversal. Gonzales v. United States, 314 F.2d 750 (9th Cir. 1963). There has been no showing of any conflict of interest between Lugo and Santiago in this case, nor have we found any in our review of the record. Also, nothing indicates that Rock failed to give Lugo’s defense the attention it required.
All the cases cited to us by appellant involved obvious conflicts of interest, and while we cannot indulge in nice calculations about the amount of prejudice which results from a conflict of interest [Glasser, supra], neither can we create a conflict of interest out of mere conjecture as to what might have been shown.
Regarding the allegation that a continuance should have been granted the day before trial, it suffices to point out that appellant was represented in fact by Attorney Rock in all preliminary matters as well as at trial, so Rock was undoubtedly familiar with appellant’s case, that appellant entered the same defense used by his codefendant, and that there was no objection to the dual representation and no request for a continuance at any time.” 350 F.2d at 859-860.

See also Gonzales v. United States, 314 F.2d 750 (9th Cir. 1963).

At the hearing on the motion in .the present case, while appellant’s attorney desired to be relieved of defending Irving, he expressed a willingness to proceed with the defense of Givhan, whose case was set for trial the following week. Neither appellant nor Givhan testified. Counsel relied wholly upon the weakness of the State’s case and upon evidence other than their testimony. The record does not indicate that Attorney Myers would have defended any differently or would have approached the defense of the case on another basis had he not been representing Givhan. The record does not reflect any prejudice or harm resulting to appellant on account of the alleged conflict of interest. After a thorough hearing on the motion, the trial judge found that there was no conflict of interest and we cannot disagree with that conclusion. The fact that appellant made it difficult for his attorney to construct a defense and to advise with him because of “notions” acquired, based on his being converted, does not bring this case within the Glasser rule.

III.

Introduction in Evidence of Photographs of Deceased.

The State offered and the court admitted in evidence three (3) black and white photographs of the deceased’s body lying in the store building. Appellant contends that the photographs had no evidentiary value, they are gruesome and were introduced solely for the purpose of prejudicing and inflaming the jury. It is further suggested that, even though such photographs may be properly admitted in a case of less gravity than a capital case, in this case, gruesome pictures should be held prejudicial, inadmissible, and reversible error simply because of the finality of the punishment.

The trial court has wide discretion in determining whether photographs are sufficiently material and relevant to justify their admission in evidence. In Mallette v. State, 349 So.2d 546 (Miss.1977), eight (8) color photographs of the nude body of a female, who had been beaten to death with a 2X4 and which were horrible and gruesome, were held to be properly admitted because they had evidentiary value in showing the cruelty by which the woman was killed and in depicting marks which indicated she had been beaten with a 2X4.

Although testimony in the present case related to the position of the body, the photographs corroborated and explained that testimony and corroborated and explained testimony of the physician with reference to the entrance and exit points of the shotgun load. They also had relevancy to the distance appellant was from his victim when he fired the gun [Mrs. Ray testified that, as soon as appellant asked for cigarettes, the gun fired, while appellant stated that Ray went behind the counter to get the cigarettes, that he then demanded Ray’s money, Ray advanced toward him and he shot Ray at that time].

We are of the opinion that the trial judge did not abuse his discretion in admitting the photographs in evidence.

IV.

The judicially-constructed capital sentencing system and the Eighth Amendment to the United States Constitution.

Appellant contends that only the Legislature may provide the procedures in capital sentencing, that the procedures announced by this Court in Jackson v. State, 337 So.2d 1242 (Miss.1976) [See U.S. Supreme Court cases cited], may not be constitutionally enforced, and he urges that we overrule Jackson. In Jackson, the guidelines for a capital case were stated as follows:

“We now hold that a trial in which the defendant is subject to receiving the penalty of death must be conducted in two phases:
The first phase shall deal only with the question of guilt or innocence of the accused or either the capital crime with which he is charged, or if warranted by the evidence, a lesser included offense. The first phase of the trial relating to guilt or innocence shall be conducted in all respects in the same manner that other criminal trials are now conducted.
If the jury at the first phase of the trial finds the defendant guilty of the capital offense with which he is charged, the trial court shall immediately, if practical, conduct a separate sentencing hearing before the same jury. However, if this should be impossible for some reason now unforeseeable, the sentencing hearing may be conducted before another jury.
At the sentencing hearing, the question to be decided by the jury is whether the defendant shall be sentenced to death or to life imprisonment. At this hearing, the State may elect to stand on the case made at the first hearing, if before the same jury, or may reintroduce any part of the evidence adduced at the first hearing which it considers to be relevant to the particular question of whether the defendant shall suffer death or be sentenced to life imprisonment. In addition thereto, an accused’s prior record of criminal convictions, if any, may be proven as an additional aggravating circumstance whether the defendant testifies in his own behalf or not. At this hearing, the defendant may prove his lack of a prior criminal record as a mitigating circumstance and may also adduce proof of any other circumstance or combination of circumstances surrounding his life and character or the commission of the offense with with he is charged that would be reasonably relevant to the question of whether he should suffer death or be sentenced to life in prison.
Proof beyond a reasonable doubt of the statutory elements of the capital offense with which the accused is charged shall constitute sufficient circumstance to authorize imposition of the penalty of death unless the mitigating circumstances shown by the evidence outweigh the aggravating circumstances.
The jury shall not be required to make a special finding of any mitigating circumstance in order to return a verdict that the accused should be sentenced to life in prison. However, before the jury may return a verdict that the defendant should suffer the penalty of death, they must unanimously find in writing that after weighing the mitigating circumstances and the aggravating circumstances one against the other that the mitigating circumstances do not outweigh the aggravating circumstances and that the defendant should suffer the penalty of death.
If the jury is unable to agree unanimously on a verdict at the sentencing hearing, the defendant shall be sentenced to life in prison.
We also hold that all convictions of persons where the penalty of death is imposed will be reviewed by this Court as preference cases in such a manner as to see that the death penalty was warranted under the facts of the case and that death sentences will not be wantonly or freakishly imposed but will only be inflicted in a consistent and evenhanded manner under like or similar circumstances.
We hold that Mississippi’s death penalty statute is constitutional as construed and implemented by this opinion and that it satisfies the concerns expressed in Fur-man and the other recent cases." (Emphasis added) 337 So.2d at 1256.

The United States Supreme Court held the Ohio death penalty statute to be viola-tive of the Eighth and Fourteenth Amendments and unconstitutional in Lockett v. Ohio, - U.S. -, 98 S.Ct. 2954, 57 L.Ed.2d 973, decided July 3, 1978, and said:

“We are now faced with those questions and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." At-, 98 S.Ct. at 2965.

and

“The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments. To meet constitutional requirements, a death penalty statute must not preclude consideration of relevant .mitigating factors.” (Emphasis added) at-, 98 S.Ct. at 2967.

In contrast with the Ohio procedure, we said in Jackson, supra, that the defendant

“may also adduce proof of any other circumstances or combination of circumstances surrounding his life and character or the commission of the offense with which he is charged that would be reasonably relevant to the question of whether he should suffer death, or be sentenced to life in prison.” 337 So.2d at 1256. Thus, appellant here was unlimited in presenting proof of any circumstance which might have been beneficial to him, and he took advantage of that provision in Jackson and requested and received the following instructions:
“D 23
In considering mitigating circumstances the jury may consider whether the defendant is incorrigible, or not capable of reforming his conduct to the values and standards of the community and society.”
“D 25
The defendant John Buford Irving, III, may adduce proof of any other circumstance or combination of circumstances surrounding his life and character or the commission of the offense with which he is charged that would be reasonably relevant to the question of whether he should suffer death or be sentenced to life imprisonment.”

We decline to overrule Jackson, which is a complete answer to this contention.

Appellant next argues that, in the event this Court declines to overrule Jackson and holds that those procedures may be constitutionally enforced, they should not be applicable to this case or to any crime that was committed prior to October 6,1976 (date Jackson was decided), and that such an application would be violative of both the State and Federal prohibitions against ex post facto laws.

In Bell v. State, 353 So.2d 1141 (Miss.1978), decided November 9, 1977, after submission of appellant’s brief here, the question was answered when this Court held that, in such case, appellant is not subjected to an ex post facto violation. Also, see Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

V.

Denial of Appellant’s Motion for Mistrial Based on Statement by Victim’s Sister, who had been Summoned to Serve on Special Venire.

After members of the special venire had been assembled in the courtroom, a juror (Mrs. Wiley Boland) stated to the court, “Judge, the murdered man is my brother.” The trial judge promptly excused the juror. When the defendant had completed his voir dire examination, he moved the court for a mistrial or to quash the venire on the ground that the venire could have been tainted by such comment.

The court, the district attorney and appellant’s attorney conducted voir dire examinations of prospective jurors and all members of the panel, who were retained, stated that they could and would be fair and impartial in the trial of the case. The record reflects that the court, the State and the appellant made reference to the term “murder” and instructions incorporated therein the word “murder.” Appellant consumed forty-one (41) pages of the record in examining the prospective jurors on voir dire and there is nothing in the record to indicate that any member of the panel or the jury was tainted by the juror’s remark. There is no merit in this assignment. Dalton v. Madison, 216 Miss. 35, 61 So.2d 688 (1952).

VI.

The Test of Exclusion Used by the Trial Court Compared to the Minimum Standards for Death Qualification Required by the Constitution of the United States as Construed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Witherspoon, the United States Supreme Court held:

“Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U.S. at 521-522, 88 S.Ct. at 1776-1777, 20 L.Ed.2d at 784-785.

Following Witherspoon, this Court considered the procedure to be employed by trial judges in Myers v. State, 254 So.2d 891 (Miss.1971). That procedure follows:

“ ‘The proper method of bringing the death penalty to the attention of the special veniremen is for the trial judge to inform them that they have been summoned as veniremen in a capital ease and that a verdict of guilty could result in the infliction of the death penalty. The judge should then ask them if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper eases, and where the testimony warrants it. If there are those who say that they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless, follow the testimony and the instructions of the court and return a verdict of guilty although that verdict could result in the death penalty, if they, being the judges of the weight and worth of the evidence, were convinced of the guilt of the defendant and the circumstances warranted such a verdict. Those who say that they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released. The mere fact that a venireman is opposed to the death penalty does not disqualify him as a juryman, if he can do his duty as a citizen and juror and follow the instructions of the court, and where he is convinced of the defendant’s guilt he can convict him although the verdict of the jury may result in the death penalty’s being inflicted upon the defendant.’ (Emphasis added). Armstrong v. State, Miss., 214 So.2d 589, at 593.” 254 So.2d at 893-894.

Almost the identical procedure was approved by the United States Supreme Court in the recent case of Lockett v. Ohio, supra. The trial judge in the present case followed the Myers guidelines in detail. He excused a juror for cause only when that juror stated that he could not or would not follow the law and the evidence. We are of the opinion that there was no violation of appellant’s constitutional rights or the principles of Witherspoon in the selection of the jury.

VII.

Denial of Appellant’s Motion for Change of Venue.

Appellant filed a motion for change of venue on the ground that he could not obtain a fair and impartial trial by jury in Pontotoc County because of prejudice and ill will existing against him. The trial judge heard the motion and entered an order denying the change of venue, which order recited that the court heard testimony and argument of counsel and found that the defendant could obtain a fair and impartial trial by jury in that county. During voir dire of the jury, the trial judge asked whether any juror had received information from newspapers, radio or television coverage about the case which would influence his or her decision. All persons selected on the trial jury qualified as being without prejudice, bias or knowledge of the facts in the case. There is nothing in the record to indicate that appellant did not receive a fair and impartial trial, nor is there anything to show an abuse of discretion in denying the motion for change of venue. The assignment is without merit. Stevenson v. State, 325 So.2d 113 (Miss.1975).

VIII.

Refusal of the Trial Court to Suppress Appellant’s Confession.

Appellant made a confession to Sheriff Hubbard in the presence of the county attorney and the Pontotoc chief of police. He testified at the hearing on the motion to suppress the confession that he was threatened by the sheriff as well as another officer and that he repeated what the sheriff suggested about the homicide on March 3, 1976, because he feared what might happen to him, if he refused. Appellant contends that under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the court committed error in not suppressing the confession.

Sheriff Hubbard testified that he advised appellant of his constitutional rights, that appellant was not threatened or coerced, and that the confession was freely and voluntarily given. His testimony was corroborated by the county attorney and chief of police who were the only other persons present. The trial court found from the evidence beyond a reasonable doubt that there were no threats or promises made to defendant and that he received full and adequate Miranda warnings. In such a situation, the trial court must determine the truth of the matter and this Court will not disturb those findings unless they appear to be contrary to the evidence. Burrill v. State, 328 So.2d 334 (Miss.1976); Ivey v. State, 246 Miss. 117, 149 So.2d 520 (1963). The legal determination made by the trial court that appellant’s confession was freely and voluntarily given is supported by the weight of credible evidence.

IX.

Appellate Review of Sentence.

Appellant contends that the procedure established by this Court in Jackson v. State, 337 So.2d 1242 (Miss.1976) for appellate review of death sentences violates his right to due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States because he is denied notice and an opportunity to be heard upon the issue of whether his death sentence is excessive or disproportionate when compared to sentences imposed in similar cases. He further contends that this procedure allows review of an issue not decided by the trial court and to have a meaningful appeal he must be aware of standards and guidelines for review of death penalty sentences which have not been outlined by this Court.

The question of whether the aggravating circumstances outweigh the mitigating circumstances was an issue before the trial court and is the precise issue decided by the jury after the sentencing phase of the trial in accordance with Jackson v. State, supra. The accused had the right to adduce evidence of any mitigating circumstances at the trial and to present argument to the jury that the mitigating circumstances outweighed the aggravating circumstances, and, in exercising that right, appellant called to the stand in his behalf nine (9) witnesses.

In Jackson, we held that cases in which a sentence of death is imposed will be automatically reviewed as preference cases by this Court, that the record will be reviewed and compared with similar cases to determine whether the punishment of death is too great when the aggravating and mitigating circumstances are weighed against each other in order to assure that the death penalty will not be wantonly or freakishly imposed, but will only be inflicted in a consistent and evenhanded manner under like or similar circumstances. 337 So.2d at 1255-1256. It follows that an additional safeguard against capricious application of the death penalty on appeal to this Court only inures to the benefit of the appellant, and the argument made in support of this assignment is unsound.

Two cases have been decided by this Court since Jackson v. State. In Bell v. State, 360 So.2d 1206, 1978, Bell was convicted of murder-robbery and sentenced to death. He was seventeen (17) or eighteen (18) years of age. He participated in the robbery of a service station and in the subsequent slaying of the eighteen-year-old attendant with shotguns. In Washington v. State, Miss., 361 So.2d 61, No. 50,401, decided July 12, 1978, Washington was also convicted of robbery-murder and sentenced to death. He, along with an accomplice, robbed a convenience store in Columbus, Mississippi, and, during the robbery, he shot one of the proprietors in the stomach with a shotgun, fatally wounding him. Washington was twenty-three years of age, was unmarried, but had a three-year-old daughter, and had been convicted only of a marijuana crime.

In the present case, Irving was convicted of a robbery-murder and was sentenced to death. He shot the proprietor of the country store, whom he had known for many years, in the neck with a shotgun, at close range, while attempting the robbery. He was twenty (20) years of age and previously had been convicted of burglary.

We have carefully reviewed the record in the present case, and have compared it with the Bell and Washington cases and we conclude that the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other and that the death penalty will not be wantonly or freakishly imposed here. We further conclude that the imposition of the death penalty in the present ease is consistent and evenhanded in like and similar cases.

X.

The appellant, as his last assignment, noted seven (7) errors, which he neither briefed nor argued, as follows:

(A)The Failure of the Trial Court to Exclude from the Courtroom the County Attorney who was a Material Witness for the State.

The county attorney testified for the State on introduction of appellant’s confession. The sequestration rule is a procedural matter within the discretion of the trial judge. Butler v. State, 320 So.2d 786 (Miss.1975). In Gillespie v. State, 215 Miss. 380, 61 So.2d 150 (1952), the Court held that it was not error to allow a county attorney to testify as a witness after hearing testimony offered by other witnesses, since he was an officer of the court. There was no showing here that the trial court abused its discretion or that appellant was prejudiced thereby.

(B), The Failure to Exclude the Sheriff and Other Law Enforcement Officers from Assisting the Prosecution in Picking the Jury.

Appellant moved the court to prevent the sheriff and other law enforcement officials from helping choose the jury after voir dire and challenges for cause. There was no proof in support of the motion. In a similar situation in Smith v. State, 219 Miss. 741, 69 So.2d 837 (1954), the assignment was held to be without merit.

(C) The Failure to Excuse an Alternate Juror who was Making Comical Faces and Laughing During the Sentencing Hearing.

During the sentencing phase, appellant filed a motion to excuse the alternate juror because other people had informed him that the juror was making comical faces and laughing. Appellant did not support the allegations of the motion with proof. The trial judge overruled the motion, stating that he had not noticed any such behavior on the part of the alternate juror and that the juror had been sequestered alone in a jury room when the jury retired to deliberate on its verdict. (First phase). The court’s action is presumed to be correct in the absence of proof. Gordon v. State, 349 So.2d 554 (Miss.1977).

(D) The Trial Court’s Sustaining the State’s Objection to Defense Instruction No. 6 on the Testimony of Eyewitnesses.

Instruction No. D-6 told the jury to consider certain facts in weighing the testimony of an eyewitness. The only eyewitness was Mrs. Ray, the victim’s wife. The court refused to grant the instruction as a comment on the weight of the evidence and properly so. Ragan v. State, 318 So.2d 879 (Miss.1975).

(E) The Trial Court’s Sustaining the State’s Objection to Defense Instruction No. 22 on a Lesser-Included Offense.

Instruction No. D-22 would authorize the jury to find the lesser-included offense of murder rather than capital murder. It was refused as being unsupported by the evidence. Appellant contends there is proof to support an inference the killing was murder unconnected with armed robbery because the money was taken after Mr. Ray was shot. The undisputed evidence reflects that Ray was killed when appellant was attempting to commit the crime of armed robbery and the instruction was properly refused. See Jackson v. State, supra, which states that such an instruction should not be automatically or indiscriminately given.

(F) The Trial Court Erred in Overruling the Defendant’s Objection to State’s Instruction No. 14 which Allowed the Defendant’s Prior Record to be Considered as an Additional Aggravating Circumstance.

Jackson v. State, supra, held that an accused’s prior record of criminal conviction may be proved as an additional aggravating circumstance whether an accused testified in his own behalf or not. There is no merit in this assignment.

(G) The Trial Court’s Refusal to Allow the Jury to Hear Testimony Regarding the Discriminatory Manner in which the Death Penalty is Administered.

Outside the presence of the jury, defense counsel was allowed to make a record of testimony by Rev. David A. Garcia which the court ruled inadmissible. Garcia testified about his finding on various studies concerning the effect and imposition of the death penalty, and that even after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the death penalty is still applied cruelly and arbitrarily. Jackson v. State, supra, is authority sustaining the trial court’s action, and this assignment is without merit.

There being no reversible errors in the record, and the appellant having received a fair trial, the case is affirmed and Friday, the eighth day of September, 1978 is set as the date for execution of the sentence and infliction of the death penalty in the manner provided by law.

AFFIRMED AND FRIDAY, SEPTEMBER 8,1978 IS SET FOR EXECUTION OF DEATH PENALTY.

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

      . Jackson and Irving were tried prior to the enactment of Mississippi Code Annotated Section 99-19-101 (1972) as amended, (sentencing statute) effective April 13, 1977, which contains the general provision: “In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances.” In addition, seven items of mitigating circumstances were enumerated. We held in Jackson v. State, 337 So.2d 1242 (Miss.1976) that the Mississippi death penalty statute in effect prior to April 13, 1977, was constitutional as construed and implemented by that opinion and we also held in Washington v. State, Miss., 361 So.2d 61, No. 50,401, decided July 11, 1978, that Mississippi Code Annotated Section 99-19-101, as amended, is constitutional under the same construction and implementation.


source: Caselaw Access Project

author: COFER, Justice, for the Court:

license: Public Domain

text:
    EXTENSION OF the BOUNDARIES OF the CITY OF BILOXI and L. D. Wise et al. v. CITY OF BILOXI.
    No. 50771.
    Supreme Court of Mississippi.
    Aug. 9, 1978.
    Rehearing Denied Sept. 13, 1978.

      Hengen & Hengen, Louis Hengen, Biloxi, Greaves & Terry, Jerry 0. Terry, Gulfport, for appellants.
    Page, Mannino & Peresich, Ronald G. Peresich, Vlahos & Caranna, Cono A. Car-anna, II, Biloxi, for appellee.
    Before ROBERTSON, SUGG and COF-ER, JJ.
   COFER, Justice, for the Court:

The City of Biloxi, Mississippi, adopted an ordinance on November 15, 1976, substantially enlarging its boundaries in the manner provided by statute (Mississippi Code Annotated, Section 21-1 — 27, et seq., (1972)), and filed petition in the Chancery Court of the Second Judicial District of Harrison County praying ratification, approval and confirmation of its said action. Protests were filed by two groups of objectors, and a lengthy and thorough hearing was had in that court, resulting in entry of decree granting the prayer of the city.

From this decision, the objectors have appealed, assigning these errors in the lower court:

1. The trial court erred in overruling the Motion of res judicata filed in this cause.
2. The court below erred in finding that the Annexation Ordinance 1202 of the City of Biloxi adopted by the City Council, was reasonable, required by public convenience and necessity and that reasonable public and municipal services will be rendered to the annexed area within a reasonable time.
3. The court erred in finding that the area is in fact adjacent to the City of Biloxi. The south boundary line of the area to be annexed was not proven by any creditable evidence whatsoever.
4. The court erred in finding that Biloxi is in need of area for expansion. There was no proof that the City of Biloxi is in need of any area for expansion.
5. The court erred in finding that it is reasonable to anticipate that the entire area to be annexed will be developed in a reasonable time into residential or commercial areas.
6. The court erred in finding that the financial condition of the City of Biloxi is sound and that the city will be financially able to provide municipal services to the area.
7. The court erred in finding that although the county is furnishing police protection to the area and the area is now provided fire protection by a good volunteer fire department, that upon being annexed to the city the residents will benefit from better fire protection and better police protection.
8. The court found that there was adequate garbage piek-up and street maintenance in the said area but erred in stating that in view of the conditions in other areas the health and welfare of the residents would be better promoted if said area is annexed.
9. The court erred in finding that the proposed annexation is reasonable and said Ordinance 1202 and the annexation provided thereby should be and is approved, ratified and confirmed in its entirety.

As recognized in Giles v. City of Biloxi, 237 Miss. 65, 112 So.2d 815, sugg. of err. overruled, 237 Miss. 65, 113 So.2d 544 (1959); Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683 (1965); and City of Biloxi v. Cawley, 332 So.2d 749 (Miss.1976); and commonly known, Biloxi is situated on a peninsula, bounded on three sides by water and on the fourth (the west) side by the City of Gulfport.

It is in this suit argued that Biloxi needs territory for expansion, that it can expand only to the north (in the area here involved), and the territory sought to be annexed lies in the path of its growth.

Reserving for further discussion hereinafter, the remainder of the territory proposed for annexation, and by the chancellor included in his decree of annexation, we find ourselves in disagreement with him as to that part of the area lying north of Interstate highway 1-10, bordered on its east by Gay Street and bounded by the meanderings of Tchoutacabouffa River between said Gay Street and where 1-10 crosses said river. There are now two subdivisions in this territory, Cedar Lake and Pine Crest. Cedar Lake is accessible to the area south of the highway by a road crossing the highway right-of-way, but persons wishing to reach Pine Crest and the territory surrounding it must leave Biloxi as it would be with the annexation, and go to the eastward some distance to find a way to the north side of the highway then turn westerly again before entering Biloxi again and reaching Pine Crest and the territory around it.

In its isolated situation, with the difficulty of passage back and forth between it and the area south of it, we do not consider it reasonable to include it in the annexation and under authority of Mississippi Code Annotated, Section 21-1-33 (1972), we modify the chancellor’s decree by removing that area from the south boundary of 1-10 northward and it will herein no longer be considered or taken as a part of the area as to which this opinion has application.

Hereinafter the territory being considered will be referred to as the “area.”

The chancellor, after hearing the proof and viewing the area involved made findings: that the area is unincorporated territory adjacent to Biloxi, though north of the Bay of Biloxi, a navigable body of water, has for years been accessible from Biloxi by bridges and causeways across the bay; that a new bay bridge (construction of which is now nearing completion) will greatly improve access to the area along Popps Ferry Road (the main road through the area proposed to be annexed); that the area is in Harrison County which has no zoning regulations controlling the area; that police protection is provided it by the Harrison County Sheriff’s office, and fire protection is afforded by a good volunteer fire department (employing one full-time fireman); that as a part of Biloxi, the area residents will benefit from better police and fire protection and will be the recipients of a substantial reduction in insurance rates.

He further found that Biloxi needs area in which to expand; that the area proposed to be annexed is reasonably within the path of its expansion; that the present residential and commercial developments in the area fully establish that Biloxi’s expansion will continue (northward) in the direction of Interstate 1-10, which passes through the area; and that a large percentage of the employed residents in the area (upward of 51% the testimony shows) are employed in Biloxi, and many of the residents of the area operate businesses in Biloxi.

It was further found by him that the area is in fact adjacent to “and for all practical purposes a part of” Biloxi, and is frequently referred to in the record as “North Biloxi;” that some of the present facilities of Biloxi, including the churches thereof, are used by many of the residents of the area; that there are no schools in the area and 769 of the 1,088 students in the area are now in school in Biloxi, and that part of the area is in the Biloxi Municipal Separate School District, and that the remainder of the student population of the area attends schools provided by the Harrison County School District; that the Biloxi school system has adequate buildings and facilities to take care of the students in the area and will furnish to them necessary transportation as provided by law.

Further, he found that there are vacant rural lands in the area, which he viewed it plausible to anticipate will be developed within a reasonable time into residential or commercial uses, and it is the better course to annex the area before its development with a view to uniform growth, rather than to delay further while the area would populate and make use, haphazardly of the land. Along this line of reasoning, he found that many septic tanks exist in the area, and some parts of it do not have adequate facilities for the collection of sewage and waste, a situation not true of all the developments thus far made; and that, though adequate garbage collection and street maintenance are provided in the area by the county, the health and welfare of the area’s residents would be better served by annexation as sought.

He found: the financial condition of Biloxi to be sound and that the city is financially able to provide the services in the area according to the schedule set out in the annexing ordinance, that the proposed municipal and police services offered in the ordinance will be furnished within a reasonable time, and that Biloxi has met the burden of proof that the proposed annexation is reasonable, and he so found, and by decree entered on his opinion, it was approved as reasonable and required by the public convenience and necessity, and the annexation was approved, ratified and confirmed. Except to the extent hereinafter announced, we affirm the chancellor’s decision.

It was argued by the objectors from the beginning of this court proceeding that the decision in City of Biloxi v. Cawley, 332 So.2d 749 (Miss.1976), involving this same area (and another area in addition) is res judicata of this cause. It is not clear in the record that the chancellor made a definite ruling on this plea, the first assigned error above, but denial of the plea is implicit in his adjudication and decree. There is no merit in this assignment, for the question was squarely faced in In Re Extension of the Boundaries of the City of Indianola, 226 Miss. 760, 85 So.2d 212 (1956). Thus faced therewith, this Court determined that there is no restriction or limitation on the right of the city to proceed for annexation “as often as [it] may think that the proposed enlargement or contraction is reasonable and is required by the then public convenience and necessity, all subject to the approval of the chancery court.” 226 Miss. at 766, 85 So.2d at 214.

Another consideration will be hereinafter examined in depth, concerning the Cawley case, supra.

There are certain legal principles that are timely at this point. The burden of proof to establish the reasonableness of the proposed annexation rested upon the petitioner, Biloxi. Dodd v. City of Jackson, 238 Miss. 372, 396, 397, 118 So.2d 319, 330 (1960); In the Matter of the Enlargement of the Municipal Boundaries of the City of Forest, 247 Miss. 340, 342, 153 So.2d 688, 689 (1963).

Reasonableness or not of the proposed annexation is a judicial question, and its decision is a judicial function. Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811 (1928), Jones v. City of Hattiesburg, 207 Miss. 491, 42 So.2d 717 (1949).

There are four criteria involved in an annexation proposal:

1. The city’s need for expansion;

2. Whether the area to be annexed is reasonably within the path of such expansion;

3. The potential health hazard from sewage and water disposal; and

4. The city’s financial ability to make improvements and furnish municipal services as promised.

Dodd v. City of Jackson, supra; Texas Gas Transmission Corp. v. City of Greenville, 242 So.2d 686 (Miss.1971).

Review of the chancellor’s decision in this type of case, as in other appeals from the trier of fact, is variously stated as a determination as to whether the decision is “ . . . [sjupported by substantial evidence and not manifestly wrong or against the weight of the evidence . . ..” Lowe v. City of Jackson, 336 So.2d 490, 492-493 (Miss.1976); the decision on conflicting evidence will not be disturbed unless this Court can say that from all the evidence the chancellor was manifestly wrong, or his decree was clearly against the overwhelming weight of the evidence. City of Picayune v. Quick, 238 Miss. 429, 117 So.2d 718 (1960); and the decision will not be disturbed if supported by substantial evidence. Dodd v. City of Jackson, supra.

It is an understatement to say that conflict appears all through the testimony. The case was hard-fought, well-tried, and the attorneys’ briefs are the product of much study and are excellent. The chancellor faced squarely each of the four prescribed criteria in determining reasonableness vel non of Biloxi’s annexation effort. On the conflicting testimony, with lines tightly drawn between Biloxi and the objectors, he found evidence supporting the city’s position on each of the criteria, and we are to consider the facts in the light most favorable to the chancellor’s decree and resolve all conflicts in its favor. Clark v. Magee, 234 Miss. 252, 105 So.2d 753 (1958).

In the Cawley case, supra, this Court said:

We have carefully reviewed the evidence and are unable to say that the decree of the chancellor is manifestly wrong or clearly against the overwhelming weight of the evidence,

and

Since the chancellor reached the conclusion that the proposed annexation was not reasonable, he dismissed the suit, and we are unable to say, after studying the voluminous record, that he was manifestly wrong in his conclusion. We therefore affirm the decree appealed from. (332 So.2d at 751).

Reverting now to a further view of the effect of the Cawley case, we believe that on the municipality’s second attempt to annex facts should be presented justifying the second effort. It is argued that promptly upon the affirmance of the Cawley case (May 25, 1976) the governing authority of Biloxi (November 16, 1976) adopted the ordinance now before the Court. The ordinance in the former appeal was adopted on May 18, 1971, and suffered delays before it was reached on its merits in this Court. Thus, five years and eight months elapsed between the adoption of the two ordinances, during which changes took place. We view the present case, as presented in the record, as having in its favor: (1) the near completion of the new high level two-lane bridge across Back Bay between Biloxi and the area attempted to be annexed; (2) Biloxi’s commitment to the West Biloxi area annexed in Bridges v. City of Biloxi, supra, as being finally nearly met; (3) the better tax base of the city from placing the property in the city of a more realistic appraisement; and (4) the growth in the area as shown in the present record. These important factors coupled with the other facts upon which the chancellor based his findings lend strength to the particular findings he made and make out a case for reasonableness of the ordinance and effort.

The omission of D’Iberville, an unincorporated, but heavily populated area, from this annexation effort, while it may be regarded that it too, or perhaps more so, lay in Biloxi’s growth path was for Biloxi’s initial determination, and recognizing the burdensome problems (not well developed in the record) which would confront Biloxi with municipal responsibility for that area, the exclusion of that area probably was a wise foresight, not considered before or at the commencement of the 1971 effort which included it.

As herein modified, the chancellor’s decree of annexation will be affirmed.

AFFIRMED AS MODIFIED.

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


text:
    GULF GUARANTY LIFE INSURANCE COMPANY v. Mrs. Erin Lewis MIDDLETON Individually and as Executrix of the Estate of Victor L. Middleton et al.
    No. 50464.
    Supreme Court of Mississippi.
    Aug. 9, 1978.

      Butler, Snow, O’Mara, Stevens & Canna-da, W. Scott Welch, III, Christy D. Jones, Jackson, for appellant.
    Hall, Callender & Dantin, William C. Cal-lender, Richard D. Foxworth, Columbia, for appellees.
    Before ROBERTSON, SUGG and COF-ER, JJ.
   COFER, Justice, for the Court:

Appellant Gulf Guaranty Life Insurance Company (Gulf) on July 24, 1970, issued to appellee Citizens Bank, Columbia, Mississippi, (Bank) a master insurance policy under which Gulf insured the lives of certain debtors of Bank tó be chosen from time to time by Bank. Gulf therein bound itself, among other things, upon satisfactory proof of the death of any such insured debtor and affidavit by Bank as to the amount due it by such deceased insured, to pay to Bank the amount of the insured’s debt to Bank or the amount of insurance in effect on the life of the deceased, whichever is the smaller, the Bank to apply the amount of insurance thus paid to it by Gulf to the debt of such decedent, any balance being paid by Gulf to the beneficiary named by the insured and recorded by Gulf, or, if no beneficiary had been named, then such balance would be paid to the insured debtor’s estate.

As to amounts and periods of insurance, the master policy provided as follows:

5. Each debtor of the creditor who is in insurable health, shall be eligible for insurance hereunder. The maximum amount of insurance under this contract on the life of any debtor shall not exceed the greatest applicable amount specified in the following schedule. The maximum period for insurance under this contract on the life of any borrower shall also be in accordance with the following schedule.
SCHEDULE
Age of Insured Debtor Maximum Maximum Amounts Term of Insurance
15-60 inclusive $10,000.00 36 months
15-50 inclusive 6,000.00 60 months
61-65 inclusive 5,000.00 12 months
66-69 inclusive 1,000.00 12 months
6. No group credit insurance shall be effective irrespective of how many certificates have been issued or how many times entered on an insurance register, on any one life in excess of the maximum amount permitted by the foregoing schedule. It is the intention hereby to limit the company’s liability and the coverage of this policy so that regardless of the number of certificates issued or the number of entries made on an insurance register, the maximum liability of the company on any one life shall not exceed the maximum amount permitted by the foregoing schedule. Any excess amount shall be void and the liability for such excess shall be limited to return of premi um paid on such excess. (Emphasis added).

It further provided:

4. This policy with the insurance register sheets or copies of the individual certificates held by the creditor showing the names of the individual borrowers, shall constitute the entire contract between the parties. All conditions, benefits and provisions printed or written by the company on the following pages form part of this policy.

The policy was endorsed by Gulf effective April 14, 1971, to change its paragraph 5 to provide that between ages 15 to 55, inclusive the maximum amount of insurance would be $20,000.

Appellee Broome, (Broome) was at all times pertinent to this decision an officer of Bank and was also general agent of Gulf, by agreement of the Bank and Gulf, for the purpose of this master policy and was licensed as such. The procedure within Bank was that the officer or officers making loans would make out credit insurance policies on borrowers, where desired, from a supply of forms furnished the Bank by Gulf, and at the close of each day would deliver the forms, otherwise completed to Broome for his countersignature as licensed agent of Gulf. Once each month, the policies thus executed were transmitted to Gulf.

One such certificate No. 507740, effective October 23, 1975, involvement of which in this case will be presently noticed, contains these provisions, in fine print:

Gulf Guaranty Life Insurance Company hereby certifies that under and subject to the terms and conditions of this certificate and of the master group credit life and/or accident and health insurance policy issued to the creditor named herein, the insured debtor, is insured for one or more of the coverages listed in this certificate provided that the desired coverage and correct premium for that coverage is so indicated on this certificate. No coverage shall exist whether indicated or not, which is not expressly granted in the master policy issued to the creditor. The amount of insurance continues for a level amount or decreases monthly depending upon the type of plan checked above and in accordance with said master group credit insurance policy until the end of the period for which the insurance was granted when same shall terminate. The proceeds of this insurance are payable to the above named creditor as its interest may appear, and the balance, if any, is payable to the second beneficiary.
******
III. Life Insurance. If on the date of this certificate the amount of insurance appearing on the reverse side hereof, when added to other group credit life insurance in force in this company on said date on the same life, exceeds the limits of insurance as set forth below for the correct age of the insured, the company shall be liable only for the return of premiums on such excess. The total amount of insurance coverage in this company on any life shall be limited to the following amounts unless the master policy or endorsements thereof permits coverage in excess of these amounts.
Age of Insured Debtor Maximum Amounts Maximum Term of Insurance
15 — 55 inclusive $20,000 60 months
56-60 inclusive 10,000 36 months
61 — 65 inclusive 5,000 36 months
66-69 inclusive 1,000 12 months

Bank had credit insurance agreements with other companies with which it could write credit insurance in a manner similar to that with Gulf above detailed.

About October 6,1972, one Victor L. Middleton, Mary M. Stautberg and James Charles Stautberg obtained a loan from Bank in the principal amount of $80,000 giving security therefor. Middleton agreed to procure $40,000 of life insurance as further security for the loan, in anticipation of which Bank sold to him credit life insurance in several companies, in the amount of $40,-000 for periods less than six months. Middleton paying the premiums therefor. Middleton again expressed his intention to procure permanent life insurance, but did not obtain it and Bank did not require him to do so.

The $80,000 loan was for the purchase of a business by the borrowers, which business they sold on May 10, 1973, to Fashion Shop, Ltd., a part of the consideration of the sale being assumption of the indebtedness to Bank; but the borrowers and the security they had given for the loan were not released from their liability on the Bank’s indebtedness.

Middleton had other loan transactions, with credit life insurance with Gulf written on his life, the entire number including the loan here involved, being twelve in number. Until he became fifty-six years old, on March 16, 1974, the maximum amount effective of credit insurance authorized under the master policy was $20,000; from his fifty-sixth birthday, the master policy limit was $10,000.

The certificate from which quotation hereinabove is set out was issued to him on October 23, 1975, in the amount of $10,000, and operated to make the total credit insurance he had with Gulf through the Bank amount to $19,050, $9,050 in excess of the maximum amount provided in his certificate and in the master policy between Gulf and the Bank.

He died on October 24, 1975, and Gulf thereafter paid on debts of the deceased insured $9,050, and offered to pay $950 thereby paying a total of $10,000 and to pay the unearned part of the premium paid for the excess over $10,000. This offer was declined.

Middleton’s wife had joined in the indebtedness to Bank to the extent of giving the Bank a lien on certain of her property as security. Fashion Shop, Ltd. had bought the shop from Middleton, et al. and had assumed the indebtedness to Bank, whereon Middleton, and subsequently his estate, remained liable. The widow qualified as executrix of Middleton’s estate, and procured the Court’s authority to bring suit. She, in her representative capacity and individually, and the Fashion Shop, Ltd., instituted this suit in the Circuit Court of Marion County, against Gulf, Bank and Broome asking judgment, joint and several, for $10,000, plus interest and costs.

The parties stipulated on the pertinent facts, and the cause was, on the pleadings and stipulation, presented to the circuit judge for decision without a jury.

Among the stipulations pertinent to this decision are the facts that Bank through its authorized officers and agents, offered to sell, and sold to Middleton credit life insurance to the extent required to meet the loan authorization commitment of $40,000, same being written with several different companies other than Gulf, for which Middleton paid the required premiums which was accepted by the Bank, at which issuance Middleton agreed to obtain permanent life insurance for the $40,000, which agreement he subsequently expressed again, but which he never did acquire; that, at the sale of the assets of the business to Fashion Shop, Ltd. there was owing to the Bank $69,-743.04, which the purchaser assumed as a part of the purchase price, Middleton and the Stautbergs not being relieved of their liability thereon; that appropriate demand has been made for the $10,000 sued for, defendants refusing payment relying on Paragraph III contained on the reverse side of the certificate which Paragraph III has been hereinabove quoted; that Bank and Broome had issued other certificates with Gulf as insurer in the amount of $9,050 which were in effect at Middleton’s decease, and in which he had paid the premium, these certificates being with respect to loans to Middleton other than the large loan in the business transaction; that an exhibit to the stipulation showed issuance on Middleton’s life in 1973, 1974, and 1975 of twelve certificates which were all issued on his life in those three years, and that on each of them, the required premium was paid by Middleton and accepted by defendants; that on six occasions prior to the October 23, 1975, certificate, Bank and Broome had issued certificates of insurance for Middleton with Gulf as insurer, each resulting in insurance on his life in excess of Gulf’s policy limitations, which times were on November 6, 1973, December 3, 1973, January 10, 1974, July 8, 1974, April 12, 1975, and August 22, 1975, on each of which occasions “the premiums were paid and accepted by all of the defendants, including Gulf Guaranty Life Insurance Company, and the insurance was not refused or rejected.” On the occasions specified (on April 12, 1975, and August 22, 1975), Gulf Guaranty Life Insurance Company affirmatively accepted coverage in excess of $10,-000 (although not communicating that fact to any party hereto), and placed $5,000 of each $10,000 certificate with another company pursuant to a reinsurance treaty; that the customary practice adopted by the defendants in issuing certificates of insurance with Gulf was that Gulf issued to Bank its master credit life insurance policy, copy exhibited to the stipulation; that Broome, an employee and officer of Bank is designated as an agent of Gulf; each loan officer or his secretary is issued a book of certificates; in accordance with the master policy, the loan officer selects the persons to be insured by Gulf and the amount of the policy and the certificate is completed by the loan officer or his secretary; that the certificates written for each day are delivered to Broome who executes the same as agent of Gulf; the premiums for each cértificate are credited to an insurance account in Bank; immediately following the first of each month, certificates written the preceding month are remitted by mail to Gulf together with one-half of the total premiums collected, the other one-half being retained by Bank as commission, and “a customer whose life is insured is not given a copy of the certificate insuring his life unless the same is specifically requested, but a copy of the certificate is placed in the customer’s note file and would be available upon request. Plaintiffs were not given a copy of the certificates listed herein, and did not request a copy of the same.”

It was further stipulated that the certificates issued in 1973-1975 on Middleton’s life were completed by officers or employees of Bank and subsequently countersigned by Broome; that in each instance of insuring Middleton in excess of the limitations noted herein the fact of exceeding the limitation was within the knowledge of Broome and Bank; that Broome and other employees of Bank were agents of other companies with which Middleton’s excess insurance could have been placed in full force and effect; that the October 23, 1975, certificate on Middleton’s life did not reach Gulf’s office until the decease of Middleton; and that Middleton’s indebtedness to Bank at all times exceeded the credit insurance; and again, that at all times material to this decision, Broome was an agent of Gulf and an officer and employee of Bank.

There was a further stipulation that, if plaintiffs are entitled to recover the face of the October 23, 1975, certificate they are also entitled to interest on $9,050 from October 24, 1975, to date of payment.

The circuit judge found that Middleton neither requested nor directed Bank or Broome to place the insurance with Gulf or any other particular company, the decision as to selection of the companies with which they put the insurance being left with Broome and Bank; that Gulf accepted insurance certificates on Middleton in excess of the limitations for the six previous occasions; that the payment by Middleton of all premiums thereon were accepted and retained by Gulf with no refusal or denial of any of the policies as being in excess of the limitations, though Gulf had sufficient time in which to do so; that the limitations on amount of insurance were contractual only and not dictated by statute; that the master policy contemplates amendment or change thereof; and that therefore, the limitations could be, and were actually waived by Gulf on those six occasions.

He further reasoned that Gulf’s practice of allowing Broome and the Bank to issue the excess insurance on the six occasions under the circumstances hereinabove detailed constituted on Gulf’s part a waiver of limitations of the master policy and of the policies issued thereunder and was a ratification of each of the excess insurance transactions; that Gulf is estopped to deny that the October 23,1975, policy was in full force and effect when it was issued, and that liability thereon arose on his death; and that Gulf is precluded from asserting that the policy was unauthorized or that it was not in full force and effect at Middleton’s death, a contrary decision allowing an unconscionable gain to Gulf and inequitable loss to plaintiffs.

Entering against Gulf judgment for the $10,000 plus interest on $9,050 from Middleton’s death the circuit court found Bank and Broome not negligent in any manner in view of the prior conduct of Gulf on the prior occasions of excess insurance; he discharged them without judgment being entered against them or either of them.

Prom the judgment Gulf appealed and the plaintiffs-appellees took a cross appeal.

On the direct appeal, Gulf assigns as error (1) the circuit court’s ruling that Gulf had waived the policy limits and was es-topped to deny that the certificate sued upon was in full force and effect when issued and (2) the circuit court’s ruling that Gulf ratified the issuance of said insurance certificate and the excess insurance contained therein.

As grounds for their cross appeal, cross appellants assign that the circuit court erred (1) in ruling Bank was without liability to them on the basis that it was not negligent and (2) in ruling that Broome was without liability for the same reason.

We affirm the judgment against Gulf; we reverse as to liability of Bank and Broome.

Gulf contends that there was no ratification of the issuance of the certificate involved herein because the document had not reached it and it had no knowledge of its existence, at the death of the insured, an essential ingredient of ratification of an act not theretofore authorized by the person who is claimed to have ratified it. This, of course, is the law, but can offer no comfort to Gulf. Ratification here is not based upon the issuance of this certificate, but stems from its ratification and approval with knowledge of the facts, of the six instances of excess insurance over a period of three years as shown in this case without objection on account thereof and its acceptance of the benefit, the premiums therefrom.

General laws of agency apply to insurance agency relationships. McPherson v. McLendon, 221 So.2d 75, 78 (Miss.1969). No authority other than this decision is really essential upon which to base the conclusion reached as to Gulf. In Germania Life Insurance Company v. Bouldin, 100 Miss. 660, 56 So. 609 (1911), cited and quoted from in the McPherson case next above, this Court said:

The powers possessed by agents of insurance companies, like those of any other corporation or of an individual principal, are to be interpreted in accordance with the general law of agencies. No other or different rule is to be applied to a contract of insurance than is applied to other contracts. The agent of an insurance company possesses such powers only as have been conferred verbally or by the instrument of authorization, or such as third persons had a right to assume that he possesses under the circumstances of each particular case.
Cases frequently arise where the principal is estopped from denying the authority of his agent, and this is especially true where the agent, with the knowledge and consent of the principal, holds himself out to the world as having certain powers. The essence of estoppel is that the party asserting the agency was deceived by the conduct of the party against whom it is asserted, and, though fraud may be an ingredient of the case, it is not essential. The principal need not authorize the agent to practice a fraud on third parties, yet if he authorize his agent to transact the business with a third party, and in so doing the agent practices the fraud on the party, the principal is liable. The estoppel may be allowed on the score of negligent fault of the principal. Where one or two innocent persons must suffer loss, the loss will be visited on him whose conduct brought about the situation. (100 Miss. at 678, 679, 56 So. at 613).

In the McPherson case above, the court also quoted from Steen v. Andrews, 223 Miss. 694, 78 So.2d 881 (1955), as follows:

The power of an agent to bind his principal is not limited to the authority actually conferred upon the agent, but the principal is bound if the conduct of the principal is such that persons of reasonable prudence, ordinarily familiar with business practices, dealing with the agent might rightfully believe the agent to have the power he assumes to have. The agent’s authority as to those with whom he deals is what it reasonably appears to be. So far as third persons are concerned, the apparent powers of an agent are his real powers. 2 C.J.S. Agency Secs. 95, 96. This rule is based upon the doctrine of estoppel. A principal having clothed his agent with the semblance of authority, will not be permitted, after others have been led to act in reliance of the appearance thus produced, to deny, to the prejudice of such others, what he has theretofore tacitly affirmed as to the agent’s powers. 2 C.J.S. Agency Sec. 96c. There are three essential elements to apparent authority: (1) Acts or conduct of the principal; (2) reliance thereon by a third person, and (3) a change of position by the third person to his detriment. All must concur to create such authority. 2 C.J.S. Agency Sec. 96e. All three elements concur in this case. (Emphasis added). (223 Miss. at 697, 698, 78 So.2d at 883).

Fundamental fairness in this instance has probably never been expressed more aptly than it was articulated nearly a century ago in Thurmond v. Carter, 59 Miss. 127 (1881). In that case appellant had a contract with the board of supervisors of Tippah County for the work of convicts of that county. One Harris, who the Court found was appellant’s agent, received custody of a prisoner from a deputy sheriff. The hour being late, he requested the deputy to take the prisoner to the county jail until the next morning, stating that he had an arrangement with the board of supervisors for such overnight detention. In compliance with Harris’ request, the deputy was taking the prisoner to jail, and on the way, the convict was shot. Harris arranged medical attention by appellee. Appellant disclaimed agency relationship with Harris and denied liability to appellee for his services to the prisoner. On affirming judgment for ap-pellee’s medical attention, this Court said:

If Harris was the agent of the contractor for the reception and custody of convicts, the latter is liable to the doctor for the services rendered. The contractor says that Harris was not his agent to receive convicts, but the sheriff and the deputy sheriff both testify that they had long been in the habit of delivering the convicts indiscriminately to Harris or to the contractor in person, and more often to the former than to the latter. This is not denied by the contractor, though he had the opportunity to deny it. We must assume, therefore, that it was true. If so, the contractor could not silently acquiesce in such reception by Harris and obtain the benefit of it so long as it proved advantageous, and repudiate it when an unfortunate occurrence made it to his interest to do so. .(Emphasis added). (59 Miss. at 130).

To relieve Gulf of liability on this policy would equate the facts hereof to a life insurance policy good and enforceable if the insured lives, but rendered void by his death. To us this is not just or equitable.

Gulf argues that waiver and estoppel may not enlarge the risks covered by a policy or create a new and different contract. We do not reach this argument finding in it nothing overcoming the conclusion already hereinabove expressed.

The circuit court was in error, we think, in finding Bank and Broome not negligent in this case, being relieved of such guilt by the fact that “the prior conduct of the defendant Gulf Guaranty Life Insurance Company clothed them with the authority to issue the certificate of insurance in question . . . ” Paragraph 14 of the stipulation says:

14. That at all times when insurance in excess of the aforesaid limitation was written, the fact that an amount in excess of the limitation was being written was within the knowledge of Pat Broome and Citizens Bank. Pat Broome and/or some other employee of Citizens Bank was the agent of other insurance companies with which said excess insurance could have been written and placed in full force and effect.

When the premium was paid on the certificate here involved, by or for Middleton, it was accepted and retained by Bank and Broome, as were all the premiums on credit life insurance issued on his life on the earlier occasions set out in the record, and Bank and Broome “assumed a contractual obligation to obtain credit life insurance” for Middleton, “and to apply the amounts so received to credit life insurance, and . stood in a fiduciary capacity towards [cross appellants and Middleton] to see that the amounts so charged, collected and withheld were actually applied to obtaining and purchasing such insurance.” Parnell v. First Savings and Loan Association of Leakesville, 336 So.2d 764, 768 (Miss.1976). Inherent in this contractual-fiduciary relation was the promise and responsibility that the insurance would not be a scrap of paper subject to question, though unsuccessfully done as here, but would be such as to afford protection to the insured’s estate in case of his death. The charge of negligence on their part may not be explained away or avoided.

Half the premiums were retained by the Bank, and the defendants have offered to refund the premium on the excess portion of the certificates.

The master policy recognizes that excess insurance may be written as contained in the statement in paragraph 6, hereinabove quoted, to-wit:

6. No group credit insurance shall be, effective irrespective of how many certificates have been issued or how many times entered on an insurance register, on any one life in excess of the maximum amount permitted by the foregoing schedule. It is the intention hereby to limit the company’s liability and the coverage of this policy so that regardless of the number of certificates issued or the number of entries made on an insurance register, the maximum liability of the company on any one life shall not exceed the maximum amount permitted by the foregoing schedule. Any excess amount shall be void and the liability for such excess shall be limited to return of premium paid on such excess.

We determine that Bank and Broome were negligent in the issuance of this certificate.

Along with Gulf, they are held liable also, but secondarily to Gulf’s liability, for the full amount of the certificate and all interest thereon, collection of which is to be had against them only if collection against Gulf proves impossible. Mississippi Code Annotated, sections 11-7-177 and 11-7-179 (1972). Aven v. Singleton, 132 Miss. 256, 266-267, 96 So. 165, 167-168 (1923).

Affirmed as to Gulf; reversed and rendered as to Bank and Broome.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

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

BROOM, J., took no part.