author: ROBERTSON, Justice, for the Court:

text:
    Morgan S. GILMER v. Elizabeth G. FREEMAN et vir.
    No. 48762.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Rehearing Denied Sept. 14, 1976.
    Cumbest & Cumbest, Pascagoula, for appellant.
    C. W. Ford, Pascagoula, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice, for the Court:

Morgan S. Gilmer appeals from the decree of the Chancery Court of Jackson County dismissing his amended bill of complaint against Elizabeth Gilmer Freeman and her husband Arthur L. Freeman.

Complainant prayed in his amended bill of complaint that a warranty deed executed by his mother, Mrs. Palma Morgan Gilmer, on April 4, 1968, conveying the homestead property in Pascagoula, Mississippi, to his sister, Mrs. Elizabeth Gilmer Freeman, be set aside and declared null and void because it was executed by his mother alone at a time when she and her husband, Rev. Luther S. Gilmer, were living on the property as their home.

Palma Morgan Gilmer died on September 20, 1968. Her husband, Rev. Luther S. Gil-mer, continued to live in the home until March 14, 1971, the day before he remarried.

On October 15, 1968, Mrs. Elizabeth Gil-mer Freeman conveyed, by quitclaim deed, the homestead property to her lawyer, C. W. Ford. On November 22, 1968, by quitclaim deed, C. W. Ford conveyed this same homestead property back “unto MRS. ELIZABETH GILMER FREEMAN and ARTHUR LEWIS FREEMAN, as joint tenants with the right of survivorship and not as tenants in common.”

The complainant also prayed in his amended bill of complaint that the quitclaim deed from Mrs. Elizabeth Gilmer Freeman to C. W. Ford executed on October 15,1968, and the quitclaim deed from C. W. Ford to Mrs. Elizabeth Gilmer Freeman and Arthur Lewis Freeman dated November 22, 1968, be set aside and declared null and void because these instruments were based on the void deed from Mrs. Palma Morgan Gilmer to Mrs. Elizabeth Gilmer Freeman.

On October 18, 1972, Rev. Luther S. Gil-mer, the father of complainant and defendant Elizabeth Gilmer Freeman and the husband of Palma Morgan Gilmer at the time of her death, executed a quitclaim deed to Mrs. Elizabeth Gilmer Freeman conveying the homestead property. She contends that this quitclaim deed from her father “conveyed all of his interest in the lands involved herein to” her.

The trial court sustained a motion to dismiss Luther S. Gilmer as a party complainant and thereafter Morgan S. Gilmer filed his amended bill of complaint.

Mississippi Code Annotated section 89-1-31 (1972), states in part:

“A conveyance, mortgage, deed of trust or other encumbrance of a homestead where it is the property of the wife shall not be valid or binding unless signed and acknowledged by the owner and the husband if he be living with his wife . . ” (Emphasis added).

Hughes v. Hahn, 209 Miss. 293, 46 So.2d 587 (1950), is remarkably similar to the case at bar. In Hughes, John Brassel on October 24, 1942, conveyed to his daughter the homestead property on which he and his wife were living as a home. John Brassel died on April 1, 1948, and on October 4, 1948, his widow signed the original deed under her husband’s signature and had it acknowledged.

After distinguishing Hughes v. Hahn from Wilson v. Gray, 59 Miss. 525 (1882), the Court said, in deciding Hughes:

“[U]nder a long line of decisions rendered by this Court since that time a deed by the husband which attempts to convey away the homestead without the joinder of the wife in the execution of the conveyance, is null and void. Such a conveyance is void as to both the husband and wife. .
******
“In the instant case the husband had been dead for several months at the time the wife joined in the conveyance, and he could not, therefore, have consented to her subsequent execution of the same. When he died on April 1,1948, he was the absolute owner of the land in question, because of the invalidity of his former deed of conveyance thereof without the signature of his wife, and therefore, the rights of the complainants in the present case had intervened long prior to her signing and acknowledging the deed.
. Even though the wife of John Brassel may have been willing that the homestead be sold on October 24, 1942, the time at which the contemporaneous assent of the husband and wife must exist is the time when the deed is finally executed by her joinder therein. In other words, the deed is void as to the owner of the homestead who has executed a deed to the same until the other spouse joins therein with the contemporaneous assent of both. Consequently, there can be no joinder by the wife in the execution of a conveyance of the homestead by the husband unless she executed the conveyance during his lifetime, and with his consent.” 209 Miss, at 298-99, 46 So.2d at 589-90.

In the case at bar, the quitclaim deed from Luther S. Gilmer to Elizabeth Gilmer Freeman was not executed until October 18, 1972, more than four years after the death of his wife, Palma Morgan Gilmer.

The warranty deed of April 4, 1968, executed by Mrs. Palma Morgan Gilmer alone in which she attempted to convey homestead property, was, therefore, null and void and of no effect.

Mrs. Palma Morgan Gilmer died intestate on September 20, 1968. The homestead property, upon her death, descended by the law of descent and distribution to her husband, Luther S. Gilmer, and the children of their marriage, share and share alike. The quitclaim deed of October 18, 1972, from Luther S. Gilmer to Elizabeth Gilmer Freeman, therefore, conveyed only a child’s part to her.

Instead of dismissing the amended bill of complaint, the trial court should have granted the relief prayed for therein. The decree of the chancery court is, therefore, reversed and these deeds set aside and declared null and void:

1. Warranty Deed from Mrs. Palma Morgan Gilmer to Mrs. Elizabeth Gil-mer Freeman dated April 4,1968, and recorded in Deed Book 330 at Page 38;
2. Quitclaim Deed from Mrs. Elizabeth Gilmer Freeman to C. W. Ford dated October 15, 1968, and recorded in Deed Book 344 at Page 503;
3. Quitclaim Deed from C. W. Ford to Mrs. Elizabeth Gilmer Freeman and Arthur Lewis Freeman, dated November 22, 1968, and recorded in Deed Book 344 at Page 504.

REVERSED AND RENDERED.

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


source: Caselaw Access Project

author: BROOM, Justice, for the Court:

license: Public Domain

text:
    Connie POWELL by Julius E. Powell v. Tollie J. THIGPEN.
    No. 48760.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellant.
    Megehee, Brown & Williams, Pascagoula, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice, for the Court:

In a tort action for personal injuries received in an automobile accident, the jury returned a verdict for Connie Powell, a minor (appellant, plaintiff), in the Circuit Court of Jackson County. The verdict was in the following form:

We, the jury, find for the Plaintiff, Connie Powell, and assess her damages at $5,000.00.
We, the jury, recommend that $1,000.00 of the $5,000.00 be awarded at the present time and the balance to be put in a trust fund for medical expenses for Plaintiff, Connie Powell, until the age of eighteen. Any remaining money is to be awarded to the Plaintiff at age eighteen. Mrs. Powell, Connie’s mother, is to be trustee of this fund.

The circuit judge then (without request of counsel) of his own initiative “instructed the jury to follow the form of their verdict and sent them back to reform the verdict.” After deliberating further, the same jury returned the following lesser verdict:

We, the jury, find [for] the Plaintiff, Connie Powell, and assess her damages at $2,000.00.

Liability was stipulated by the litigants and the only issue was the amount of the damages. Connie Powell, a guest passenger, received her injuries in September 1972 in an automobile accident which caused a large bump on her head described by her mother as being the size of a hen egg. Her knees were bruised, after which she was given emergency treatment at Singing River Hospital. Since the accident she has suffered from chronic headaches requiring her to take aspirin several times per week. The testimony indicated that on account of her injury she was unable to take physical education at school. A neurologist, Dr. Norris, based upon history of her injury, diagnosed her headaches as vascular type which he believed to be related to her injury. He indicated that her headaches might continue the remainder of her life, and he categorized vascular type headaches in the group commonly referred to as migraine.

Subsequent to the second jury verdict, appellant filed a motion to reform and reinstate the original verdict or, in the alternative, to grant an additur or a new trial as to damages. This appeal is from the order of the trial court overruling that motion. Relying upon Mississippi Code Annotated § 11-7-157 (1972), appellant contends that the language of the first verdict for $5,000 meets the test of sufficiency. Appellant points out that the first sentence of the first verdict substantially follows plaintiff’s instruction No. 3, and that the remainder of the language of the verdict was a mere recommendation as to how the money should be controlled and used. We find merit in this contention because the first sentence of the verdict answers the sole question in issue and is sufficiently certain as to enable a court to intelligently base judgment thereon. Poynter v. Trotter, 250 Miss. 812, 168 So.2d 635 (1964).

Appellee argues that the first verdict was a qualified or conditional verdict and indicated the jury’s “willingness to award the sum of $5,000, if only” the funds were later disbursed according to its recommendation. We reject the appellee’s argument, and hold that the language after the first sentence in the verdict was no more than a recommendation which merited no further jury deliberation.

Appellee relies upon the case of Morris v. Robinson Bros. Motor Co., 144 Miss. 861, 110 So. 683 (1927). There the circuit judge correctly “told the jury that their verdict appeared to be for both the plaintiff and the defendants.” The first jury verdict in the instant case was singularly favorable to the plaintiff. The Morris verdict related to issues not before the jury and was patently not responsive. Appropriately the Morris jury was directed to go back and find for either the plaintiff or the defendants, after which the jury entered a verdict in proper language for the plaintiff. Morris was based upon Mississippi Code § 780 (1906) [Miss.Code Ann. § 11-7 — 161 (1972)] requiring that the jury be sent back for further deliberation in cases where the verdict is not responsive, which is not the case in the pending suit. Thus the proposition of waiver under Morris, supra, is unavailing to the appellee upon this record.

Under Mississippi Code Annotated § 11-7-159 (1972), the court may direct a verdict reformed at the bar if it is informal or defective. The first verdict in this case, though followed by precatory words, was responsive, complete, formal, sensible, unambiguous, sufficient in every respect, and answered the only issue submitted. The first verdict contained everything essential, and the language following the first sentence was mere surplusage and in no way vitiated the verdict. Jeffreys v. Clark, 251 Miss. 129, 168 So.2d 662 (1964). Thus the trial judge was not authorized under any authority (statutory or otherwise) to send the jury back. Under § 11-7-161, supra, it is mandatory that the trial court send the jury back for further deliberation when its verdict is not “responsive to the issue .” but here, confronted with a responsive verdict, the trial judge sent the jury back without any request, authority, or need to do so. In such a posture, failure of counsel to object did not warrant the judge to do what was otherwise unauthorized and unnecessary to resolution of the issue.

Our conclusion is that the trial court erred in sending the jury back for further deliberations and afterwards, in accepting the second verdict. The first verdict was adequately supported by the evidence and should be reinstated, and appellant awarded a judgment for $5,000 which will be entered here.

REVERSED AND RENDERED.

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


author: SUGG, Justice,

text:
    Billy D. HARRINGTON v. STATE of Mississippi.
    No. 49236.
    Supreme Court of Mississippi.
    Aug. 17, 1976.

      Pennington, Walker & Turner, West Point, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

The issues in this case are:

1. May evidence of uttering a forged instrument be introduced in a trial on an indictment for forgery?

2. Was defendant denied his constitutional right to . a speedy trial?

Defendant was indicted at the July 1974 term of the Circuit Court of Oktibbeha County for forging a check in the amount of $100. Forging a check is a crime under the provisions of Mississippi Code Annotated section 97-21-35 (1972). Hodgkin v. State, 172 Miss. 297, 160 So. 562 (1935).

Defendant does not challenge the sufficiency of the evidence to support his conviction for forgery of the check including the endorsement of the payee, but contends that it was error for the state to introduce evidence that he uttered the forged check. He argues that evidence of uttering the forged check was evidence of a separate crime and was therefore inadmissible under the indictment charging forgery. The crime of uttering and the crime of forgery are separate and distinct offenses. Criddle v. State, 250 Miss. 328, 165 So.2d 339 (1964); Osby v. State, 229 Miss. 660, 91 So.2d 748 (1957); Cogsdell v. State, 183 Miss. 826, 185 So. 206 (1938).

The general rule is that the issue on a criminal trial shall be single, the testimony must be confined to the issue, and, on the trial of a person for one offense, the prosecution cannot aid the proof against him by showing that he committed other offenses. In Floyd v. State, 166 Miss. 15, 148 So. 226 (1933) we stated:

The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him. ‘To permit such evidence,’ says Bishop, ‘would be to put a man’s whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.’ 1 Bish.Crim.Proc., § 1124. There are exceptions to the rule which has been stated, such as where the offense charged and that offered to be proved are so connected as to constitute but one transaction, or where it is necessary to identify the offender, or where it is material to prove motive, and there is apparent relation or connection between the act proposed to be proved and that charged, or where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge and the like . . . (166 Miss. at 35, 148 So. at 230).

Younger v. State, 301 So.2d 300 (Miss.1974); Hosey v. State, 300 So.2d 453 (Miss.1974); Clanton v. State, 242 Miss. 734, 137 So.2d 180 (1962).

Evidence of uttering or negotiating the check in this case was competent for three reasons: first, it tended to establish the fraudulent intent of the defendant; second, when the defendant cashed the check, he forged the endorsement of the payee in the presence of the clerk who cashed the check, thus the forgery and the uttering were a part of the same transaction; third, there was a relationship between uttering the check and forging the endorsement of the payee.

This Court has previously held that evidence of similar transactions committed at or about the same time as a forgery offense, is admissible for the purpose of proving identity, intent, knowledge or a common scheme to defraud. Thompson v. State, 309 So.2d 533 (Miss.1975), cert. denied 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 250; Pierce v. State, 213 So.2d 769 (Miss.1968).

Defendant’s second contention is that his constitutional right to a speedy trial was violated. He filed a motion to dismiss the indictment for this reason and a hearing was held outside the presence of the jury. The proof on the motion showed that defendant was indicted at the July 1974 term for forgery and an attorney was appointed for him at that time. He was indicted, tried, convicted and received a sentence of ten years at the January 1975 term for armed robbery. This conviction was affirmed December 22, 1975. Harrington v. State, 323 So.2d 755 (Miss.1975).

At the January 1975 term defendant filed a motion for a continuance for the purpose of having an independent handwriting analysis made of the cheek which was the basis of the indictment. At the July 1975 term defendant was granted another continuance and was tried and convicted at the October 1975 term.

Defendant claims that the district attorney agreed to remand the forgery case to the files if the armed robbery case resulted in a conviction and was affirmed; however, there was no proof of such an agreement by the district attorney. The district attorney was called as a witness by the defendant and admitted that he probably talked to the defendant’s attorney with reference to remanding the case to. the files, but stated that no firm agreement was reached on the question. It was also developed at the hearing that, at the time defendant was indicted for the forgery in 1974, he was on parole from two previous forgery convictions and a revocation of parole hearing was pending. At the conclusion of the evi-dentiary hearing the trial judge made the following finding of fact:

BY THE COURT: In Oktibbeha County, Mississippi, ordinarily the grand jury is convened in the January and July terms. There are four terms in Oktibb-eha County, Mississippi, January, April, July and October. At the grand jury terms the criminal cases are given priority and that is generally considered the criminal terms of court. At the April and October Terms of court the civil cases are given priority. That is generally considered the civil term of court. However, when there is time available, criminal cases are heard in what is known as the civil term, and sometimes civil cases are heard in what is known as the criminal term. In this particular case the defendant was indicted at the July 1974 term of court and an attorney was appointed for him because he was an indigent. At the February 1975 term of court, which was the next criminal term of court, the defendant requested by motion for an independent handwriting analysis and the motion was granted and the case was continued. At this same term of court the defendant was tried in another case on the charge of armed robbery for which he had been indicted at that term of court. At the following criminal term of court in July 1975 defendant sought and was granted a continuance. The Court is of the opinion that the motion is without merit and it is overruled.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the United States Supreme Court announced a balancing test which takes into consideration the conduct of both the prosecution and the defendant in determining whether or not the accused’s right to a speedy trial has been violated. The test is expressed as follows:

A balancing test necessarily compels courts to approach speedy trial cases on an ad-hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. 407 U.S. 514 at 530, 92 S.Ct. 2182 at 2192, 33 L.Ed.2d 101 at 116-17 (Emphasis added).

The defendant never asserted his right to a speedy trial before October, 1975 and all continuances were at his requests. The defendant infers that he requested continuances because his attorney and the district attorney talked about the possibility of remanding the forgery case to the files if his conviction for armed robbery was affirmed. The first continuance was not for this reason because defendant specifically asked for the continuance to enable him to have a handwriting expert examine the check in question. The only delay that could possibly be attributed to the conversations between defendant’s attorney and the district attorney was from the July 1975 term to the October 1975 term.

The trial judge, not the district attorney, has control of the docket. None of the conversations pertaining to the possibility of remanding the forgery case to the files were related to the trial judge and of course conversations between the district attorney and defendant’s attorney were not binding on the trial judge.

The evidence does not show any prejudice to the defendant flowing from the continuances that he requested. He does not claim that any witnesses have died or were otherwise unavailable, nor does he set forth any reason why the delay prejudiced him. When we consider the length of delay, the reason for the delay, the failure of defendant to assert his right to a fair trial, and the lack of prejudice to the defendant, we are of the opinion that he was not deprived of his right to a speedy trial.

AFFIRMED.

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


author: ROBERTSON, Justice,

text:
    Jack M. REED et al. v. COOK CONSTRUCTION CO., INC. and Southwestern Materials Company.
    No. 48758.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Scales & Scales, Jackson, for appellants.
    Cox & Dunn, Ltd., Jackson, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice,

for the Court.

Jack M. Reed and twenty-eight other residents of Pine Acres No. 2, a subdivision of lands in the First District of Hinds County, Mississippi, filed a bill of complaint in the Chancery Court of the First Judicial District of Hinds County, for damages and injunctive relief against Cook Construction Company, Inc., and Southwestern Materials Company.

Complainants alleged that Cook operated two asphalt plants and Southwestern a concrete mixing plant west of their homes and in operating these plants emitted into the air “nauseous, noxious, obnoxious, sickening and offensive odors and fumes”, “choking dirty dust”, and also made “clanking, clamorous noises”.

It was alleged also that Cook’s and Southwestern’s truck drivers “demolished” the streets by using overloaded vehicles, and drove recklessly on the streets near their homes.

Cook and Southwestern answered that they conducted lawful businesses in a reasonable manner in lawfully zoned industrial districts, and denied that the operation of their businesses constituted a nuisance.

In Reber v. Illinois Central Railroad Company, 161 Miss. 885, 138 So. 574 (1932), this Court set forth guidelines for deciding cases of this sort:

“As to whether the operation of a lawful business is a nuisance in fact depends upon the surrounding facts and circumstances, each particular case is to be determined very largely by its own facts. A fair test as to whether a business, lawful in itself, constitutes a nuisance, is the reasonableness or unreasonableness of conducting the business complained of in the particular locality, and under the circumstances of the case; and, where the use of the property is not unreasonable, it will not, as a rule, be enjoined, nor can a person complaining thereof recover damages. The locality is to be considered in determining whether there is a nuisance — what might be a nuisance in one locality might not be such in another. Thus, a business might be perfectly proper in a business or manufacturing territory, and a nuisance when carried on in a residential section; ‘and conversely, a business which, with its incidents, might well be considered a nuisance in the residential portion of a city or village, may be proof against complaint where conducted in a business or manufacturing locality.’ The law of private nuisances is a law of degree, and usually turns on a question of fact, whether the use is unreasonable or not, under all the circumstances. There is no hard and fast controlling rule; for the use under one set of facts might be reasonable, and unreasonable under another. ‘Whether the use of property to carry on a lawful business which creates smoke or noxious gases in excessive quantities amounts to a nuisance, depends on the facts of each particular case.’ Which facts are often ‘many and varied, such as location, nature of the use, character of the neighborhood, extent and frequency of the injury, the effect on the enjoyment of life, health and property and the like.’ ” 161 Miss, at 897-98, 138 So. at 576-77. (Emphasis added).

After a long and thorough trial (the record consists of 1227 pages of pleadings and testimony and numerous exhibits), the chancellor took the matter under advisement and called for briefs. After carefully considering the voluminous record and the briefs, he rendered a 7-page opinion. In summary, he expressly found:

(1) The area in question has been gradually thrust into the mainstream of industrial development, of which the defendants’ installations form only a part, with no construction of new homes for at least ten years.

(2) The property where the defendants’ businesses are located was duly zoned industrial. Their businesses were lawful and lawfully conducted.

(3) The defendants demonstrated their desires and efforts to be good neighbors and to minimize any disturbance in every reasonable manner.

(4) The measures taken by defendants to minimize complaints were reasonable and for the future they were willing to continue their efforts to be good neighbors.

(5) The businesses, being lawful, were not conducted unreasonably or in such a manner as to become an actionable nuisance.

(6) The property occupied by complainants is in the process of shifting from residential value to industrial or commercial or business value and there was no damage to monetary values of those properties.

This Court has carefully reviewed the long record, noted the numerous exhibits filed, and studied and considered the briefs of counsel. After doing all this, the Court is of the opinion that the chancellor’s findings of fact are amply supported by the evidence and that his decision that the bill of complaint should be dismissed is correct and should be affirmed.

The chancellor’s observation, that the complainants “have two very valuable monitors available to them” in the county law enforcement officers and the Mississippi Air and Water Pollution Control Commission, was timely made.

The decree of the chancery court dismissing the bill of complaint is affirmed.

AFFIRMED.

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


author: SMITH, Justice,

text:
    Mable WARREN v. STATE of Mississippi.
    No. 49080.
    Supreme Court of Mississippi.
    Aug. 17, 1976.

      George S. Monroe, Newton, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before GILLESPIE, SMITH and WALKER, JJ.
   SMITH, Justice,

for the Court:

Mable Warren was tried in the Circuit Court of Newton County upon an indictment charging her with murder in the shooting death of Janet Bishop. She was convicted of manslaughter and sentenced to serve eight years in the penitentiary.

It appears from the record that Mable Warren and her husband had separated during the first week in December, 1973. There was evidence that the marriage had been a painful and tumultuous relationship. On December 23, 1973, Mable Warren returned to their home and shot her estranged husband and Janet Bishop, his paramour. The husband recovered from his wounds but Janet Bishop died.

The defense interposed at the trial was self-defense and a great deal of evidence was introduced by both sides. Since the case must be reversed and remanded we deem it unnecessary to set out in detail the circumstances which brought about the shooting.

On appeal the action of the trial court in granting an instruction which set out in detail the entire schedule of punishments which might be imposed upon the defendant if the jury should convict her of manslaughter is assigned as error.

The case went to the jury at 11:10 on Friday morning and the jury remained deadlocked throughout that day. At 9:35 the next morning the trial judge gave the jury an additional instruction in which he stated the maximum penalty for murder and manslaughter. The jury having returned to its deliberation and having failed to reach a verdict, at 10:50 that same morning the trial judge gave another instruction specifying the minimum penalty for manslaughter. An objection was interposed by the defendant upon the ground that under the circumstances this instruction amounted to an implication on the part of the court that if the jury would convict her of manslaughter the lesser punishment would be imposed. Twenty minutes after receiving this instruction the jury returned a verdict of guilty of manslaughter, the verdict having contained a recommendation of the defendant to mercy.

In Ellerbe v. State, 79 Miss. 10, 30 So. 57 (1901) this Court said:

This is an indictment for murder and a conviction of manslaughter. The entire defense was put on the ground that the killing was justifiable, and in self-defense. In this condition the state asked an instruction, numbered 3, in these words: “The court instructs the jury that they may find either one of the four following verdicts: First. ‘We, the jury, find the defendant guilty as charged in the indictment.’ Under this verdict the punishment is death. Second. ‘We, the jury, find the defendant guilty as charged in the indictment, and fix his punishment at imprisonment in the penitentiary for life,’ — in which case the court will sentence the defendant to the penitentiary for life. Third. ‘We, the jury, find the defendant guilty of manslaughter.’ Under this verdict the court may fine the defendant in any sum not less than $500, or imprison him in the county jail not more than one year, or both, or may sentence him to the penitentiary not less than two years. Or, fourth, ‘we, the jury, find the defendant not guilty, which would be an acquittal.” We think the granting of this charge reversible error, because of its third clause. It is faulty in stating the punishment, and that in its milder forms. It looks too much like an invitation to the jury to compromise on the lesser offense. The jury have nothing to do with, and should be told nothing of, the character or degrees of punishment in any ease whatever, except in murder, in the instance of the first, second, and fourth clauses of the charge, because of the statute. It may be that this charge, and it alone, produced the manslaughter verdict. (79 Miss, at 16-17, 30 So. at 57-58).

In Smith v. State, 288 So.2d 720 (Miss.1974), the Court stated:

The sole duty of the jury was to pass on the guilt or innocence of the accused. The jury was not concerned in any way with the punishment to be meted out, and it was error to so instruct it as to what the sentence could be. The duty of sentencing the accused was that of the trial judge alone, uninfluenced by any consideration except that of meting out a fair and proper sentence under the circumstances of the particular case. (288 So.2d at 722).

In the case now before us, the circumstances were as follows: At 3:10 in the afternoon of the day on which the jury retired to consider its verdict, the jury, through its bailiff, requested that they be returned to the courtroom. The jury having been seated in the box the court inquired if it had reached a verdict and was informed by the foreman that it had not. The court then inquired as to how the jury was divided numerically and was told “8 to 4.” Whereupon the court said to the jury:

BY THE COURT:
Eight and four. Well, you have been deliberating for three hours, about. It took us two days to try this case and the jury was two nights in the jury room. The Court feels that this jury should be able to get together on this case. I am going to let you return to the jury room and deliberate further on this case. Now, is there anything that the jury needs, as far as any refreshments or anything that would make you more comfortable?
BY MR. FOREMAN:
No, sir.
BY THE COURT:
I am going to let you return to the Jury Room and deliberate further. Ladies and gentlemen, consider the instructions of the Court that the Court gave you and try, if you can, to get together on this case. I will let you deliberate further. Return them to the jury room.

JURY RETURNS TO THE JURY ROOM.

At 5:23 of the afternoon the trial judge presented the District Attorney and defense counsel with an additional instruction which he proposed to give to the jury on his own motion. At 5:30 p. m. the sheriff was instructed to return the jury to the box and it was determined by the court that the jury, at that time, stood 11 to 1. The court then directed the jury to return to deliberate further.

At 6:55 p. m. the court directed the sheriff to return the jury to the jury box. It was thereupon determined that the jury had not reached a verdict and stood 11 to 1. Following some remarks to the jury from the trial judge who pointed out the length of time which had been consumed in the trial and the need that the case be decided by a jury the court recessed until 9:00 the next morning and directed the jury to return to the jury room. The next morning at 9:35 the trial judge had the sheriff return the jury to the box. Upon being asked by the court the foreman stated that no verdict has been reached whereupon the following transpired:

BY THE COURT:
Is there anything that the Court can further instruct the jury on that might help in resolving this matter?
BY THE FOREMAN:
I don’t think so, Sir.
BY THE COURT:
Do you think there is a probability that the jury can get together on this verdict?
BY THE FOREMAN:
No, sir.
BY THE COURT:
You don't think there is any?
BY THE FOREMAN:
No, sir.
BY THE COURT:
Well, have a seat there in the jury box and let me give this instruction to the jury, and then I want to have you to deliberate a little further in the light of this instruction I am giving you. The Court instructs the jury that if you believe beyond reasonable doubt and to a moral certainty that the Defendant willfully, feloniously, and of her malice aforethought killed and murdered Janet Loper Bishop, the deceased, then it is your sworn duty to find the Defendant guilty. On the other hand, if there is a reasonable doubt in your mind that the Defendant so killed the deceased, then it is your sworn duty to find the Defendant not guilty. The Court further instructs the jury that the penalty for murder is life imprisonment in the Mississippi State Penitentiary, and the maximum penalty for manslaughter is twenty years imprisonment in the Mississippi State Penitentiary. You should consider this instruction along with all other instructions given to you by the Court. Now, in light of this instruction, ladies and gentlemen, I want you to return to the jury room and deliberate some further on this case. I don’t mean to unduly keep you in the jury room, but as I said yesterday, it has taken now about three days to try this case. I want each one of you to be conviced [sic] of your verdict, and the Court is not trying to pressure you into returning a verdict, but with the amount of time we have spent on this case, if it is at all possible for this jury to get together on a verdict, why then the Court wants you to do so. So with this instruction, I want you to return to the jury room and deliberate some further.

JURY RETURNS TO JURY ROOM.

There was no objection to the above instruction.

At 10:55, the jury again having been returned to the courtroom and having reported that it was unable to reach a verdict, the foreman stated to the court: “Your Honor, I don’t think this jury will ever come to a decision.” Thereupon, the court of its own motion, over appellant’s objection that the instruction implied “ . . . that the court will give a ■ lesser sentence to the defendant . . . ” if the jury convicted of manslaughter, gave the following instruction:

The Court instructs the jury that if you believe from all the evidence beyond reasonable doubt and to a moral certainty that the Defendant willfully, feloniously, and of her malice aforethought killed and murdered Janet Loper Bishop, the deceased, then it is your sworn duty to find the Defendant guilty.
On the other hand, if there is a reasonable doubt in your minds that the Defendant so killed the deceased, then it is your sworn duty to find the Defendant not guilty.
The Court further instructs the jury as follows:
1. That the penalty for murder is life imprisonment in the Mississippi State Penitentiary, and upon a return of such verdict, it will be the duty of the Court to sentence the Defendant to life imprisonment in the Penitentiary.
2. The penalty for manslaughter is a fine of not less than $500.00 or imprisonment in the County Jail for not more than one year, or both, or imprisonment in the Penitentiary not less than two years nor more than twenty years. Upon a return of such verdict it would be the duty of the Court to sentence the Defendant in accordance with that penalty.
You should consider this instruction along with all other instructions given to you by the Court.

The only function of this instruction was to inform the jury of the lesser punishments for manslaughter.

According to the record, this occurred at 10:55. Twenty minutes later, at 11:15, the jury returned a verdict finding the defendant guilty of manslaughter “with the mercy of the Court.” The trial judge sentenced the defendant to serve eight years in the penitentiary. The giving of this instruction by the trial court, particularly under the circumstances outlined above, was prejudicial error and added nothing to the instructions already given except to point out the lesser penalties which might be imposed on conviction of manslaughter. For this error the case must be reversed and the defendant awarded a new trial.

Of other errors assigned, one other should be noticed. The State called and placed upon the stand appellant’s husband. An objection was immediately interposed by appellant and sustained. This took place in the presence of the jury. The harmful effect of this incident was aggravated by the District Attorney in his remarks to the jury to the effect that there were three people who were present at the time of the shooting, the defendant, Mable Warren, the deceased, Janet Bishop and L. T. Warren, the husband of Mable Warren, who the State was not permitted to call as a witness. Appellant’s objection was sustained and a motion for a mistrial, made shortly after the jury had retired, was denied.

Mississippi Code Annotated section 13-1-5 (1972) provides that a husband and wife shall not be competent witnesses against each other except in “controversies between them. . . . without the consent of both.” (Emphasis added). There is no suggestion that the State had obtained the consent of Mable Warren to use her husband as a witness against her.

Although the trial court sustained the objection on the part of appellant to the use of her husband as a witness and sustained the • objection to the improper remarks of the District Attorney, it is doubtful that the prejudicial effect could be effectively removed from the minds of the jurors. While it is not likely that these circumstances will recur upon retrial of the case we consider the matter of sufficient gravity to be mentioned here. Appellant’s right to withhold her consent would mean little or nothing if the exercise of this right is made the means of prejudicing the jury against her.

We find it necessary to say that the verdict was not against the overwhelming weight of the evidence, and that the record discloses that there was sufficient evidence to support a conviction. Other matters assigned as error have been examined and are without merit.

REVERSED AND REMANDED.

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

LEE, J., took no part.


author: LEE, Justice, for the Court:

text:
    Lavern AUSMER v. George J. SLIMAN and Jody Johnson.
    No. 48774.
    Supreme Court of Mississippi.
    Aug. 24, 1976.

      Johnston, Pritchard & Wright, Pascagou-la, for appellant.
    White & Morse, Gulfport, for appellees.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice, for the Court:

This is an action by Lavern Ausmer against George J. Sliman and Jody Johnson for the wrongful death of her six-year-old son. The Circuit Judge of Jackson County, hearing the case without a jury, entered judgment for defendants at the conclusion of the plaintiff’s testimony, and Ausmer appeals.

The sole question is whether or not the trial judge erred in excluding the evidence of appellant and in entering judgment for appellees.

The child, Miles Bainsford, drowned in a swimming pool of appellees on July 29, 1973. Appellees owned an apartment building, and the pool was located at its rear. The deceased lived about two blocks away. At various times, children slipped into the swimming pool area and swam in the pool, both during the day and night. Appellees learned of this practice, they placed signs around the pool warning persons other than the tenants to stay away from the premises, and they told the children to keep away from the area.

On the occasion of the tragic accident, Miles, his nine-year-old brother, Harold, and another child were looking for a little girl friend with whom they wished to play. Miles was “making like a motorcycle” when he ran through the apartment property near the swimming pool, tripped over the handle of a net used to clean the pool, fell, struck his head on the concrete and rolled into the water. His brother was unable to rescue him and Miles drowned.

The long-established rule in this state is that water hazards are not attractive nuisances, and the attractive nuisance doctrine does not extend to swimming pools, although there may be exceptions where the hazards are hidden or concealed and are not likely to be found and avoided by a child. Gordon v. C.H.C. Corporation, 236 So.2d 733 (Miss.1970); McGill v. City of Laurel, 252 Miss. 740, 173 So.2d 892 (1965).

Miles Bainsford was not attracted to the pool and apartment area for the purpose of swimming, but he was looking for his friend. A cleaning net by the side of the pool could not be said to constitute a danger and a hazard. If there had been no pool at the site and the child had tripped over the handle, struck his head on the concrete and sustained fatal injury, the ap-pellees here would not have been liable.

Under established law in this state the only duty owed the child, as a trespasser, was not to willfully or wantonly injure him. Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955).

We, therefore, conclude that the trial judge was correct in entering judgment for appellees, and the judgment must be and the same is affirmed.

AFFIRMED.

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

WALKER, J., took no part.


author: ROBERTSON, Justice:

text:
    Roger L. IVORY v. STATE of Mississippi.
    No. 49204.
    Supreme Court of Mississippi.
    Aug. 24, 1976.
    Joe M. Buchanan, Indianola, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice:

The grand jury at the October, 1975, term of Circuit Court of Sunflower County, returned a joint indictment against Roger Lee Ivory, Walter Lee Buckner and Edward Burrage, for the burglary of a cafe known as the Quick-Chick on June 10, 1975.

Ivory was arraigned on October 14, 1975, and, through his court-appointed attorney, pleaded “Not Guilty”. Buckner waived arraignment. Burrage has never been apprehended.

The court order of October 14, 1975, provided:

“IT IS FURTHER ORDERED, any motions for severance and the like be filed within a reasonable time from and after this date.”

On October 27, 1975, the day before the case was set for trial, Ivory filed a motion for severance which recited:

“[A]nd in support thereof would show that statements were made by one or more of the Co-Defendants which would be damaging to the other Co-Defendants.”

Ivory’s motion for severance was heard on October 28, 1975, and was overruled. Immediately thereafter the case was tried. Ivory was found guilty and Buckner not guilty. Ivory was sentenced to six years in the penitentiary. He appeals his conviction and sentence.

The chief prosecution witness was Arthur Powell, a 15-year-old youth. Powell testified that he and Buckner were lookouts and Burrage and Ivory entered the Quick-Chick through a side door. When they returned, Burrage gave Powell some nickels; Ivory had some cigarettes and change in his pockets.

Ivory took the stand in his own defense, and testified that he and Buckner were going to Ivory’s house to play cards when they came upon Burrage and Powell, who were arguing. Ivory heard Burrage threaten to kill Powell because Powell “would tell it”. Burrage told Buckner and Ivory to be lookouts while he and Powell broke into the Quick-Chick. When Burrage and Powell returned, Burrage gave Powell something and Ivory ran home. Ivory testified that he wasn’t given anything and was a lookout only because he was afraid of Burrage.

Buckner, co-defendant, was placed on the stand by his attorney. His testimony was substantially the same as Ivory’s. In answer to questions asked by Ivory’s counsel, Buckner testified that Ivory had no part in the burglary, that he and Ivory stood on the corner and fifteen or twenty minutes later when he (Buckner) saw Burrage and Powell running “Both of us ran”.

On cross-examination by the county attorney after Buckner insisted that he and Ivory had nothing to do with the burglary, that they merely stood on the corner, the prosecution questioned Buckner about a statement written by Buckner and given to Deputy Sheriff Hayes on June 10, 1975. Buckner admitted that he was advised of his rights and that the statement was voluntarily made.

The statement was received as an exhibit without objection, but when Buckner was asked to read it to the jury, Ivory’s counsel objected and a hearing was held in the court’s chambers. Ivory’s counsel made this objection:

“Comes now the defendant, Roger Lee Ivory, by and through his attorney of record and objects to,the statement allegedly written and signed by Walter Lee Buckner on June 10, 1975, and would show in support thereof, that at the time of the arraignment on or about October 14, 1975, Roger Lee Ivory, by and through his attorney reserved the right to request a severance in this cause; and a later date made a motion for a severance which was denied by this Court and the law is clear that one co-defendant confession cannot be used against another co-defendant unless all references to the co-defendant is stricken from the statement thereof.”

The court, in overruling the objection, said:

“During the presentation of this evidence, the State made no attempt whatsoever to introduce this statement and if this statement had implicated your defendant, and if they had attempted to do that, certainly, this Court would not have allowed them to do it. We are in a position now where the defendant takes the stand and makes statements and the State is now attempting to impeach him. This is something in my opinion that is entirely different by showing prior inconsistent statements. This is entirely different in my opinion from the State attempting to introduce one confession of one defendant implicating another. They are attempting to impeach him now by showing prior inconsistent statements. Which differs from the testimony he has given from the witness stand. I am going to overrule that Motion.”

The statement read:

“Monday night about ten o’clock me and Edward D, Roger Lee Ivory and Powell was walking down by the Quick Chick and Edward D. stopped. Edward D. said that he was going to kill Powell. I told him that he did not have to do it. I wanted to stop him from shooting him. Edward D. and Roger Ivory went to the place. He told us if he heard anything about it, he was going to kill—I don’t know anything about no money or anything—Know that they entered the place Monday night. Edward D. and Roger Ivory entered the Quick Chick Monday night through the side door.”

Ivory’s first assignment of error is that the court erred in denying him a severance.

Mississippi Code Annotated section 99-15^47 (1972) provides:

“Any of several persons jointly indicted for a felony may be tried separately on making application therefor before the order for a special venire in capital cases and before arraignment in other cases.” (Emphasis added).

Ivory admittedly did not apply for a severance before arraignment on October 14, 1975. However, the order of the court entered on October 14, 1975, provided that “any motions for severance and the like be filed within a reasonable time from and after this date.”

In Bolin v. State, 209 Miss. 866, 48 So.2d 581 (1950), this Court said:

“Appellants also say that the trial court erred in denying their motion for a severance. Mississippi Code of 1942, Section 2514, grants a right to severance if application for it is made before arraignment in felony cases, except capital cases. Here the record clearly shows that application for severance was made after the arraignment, and under those circumstances the granting of a severance discretionary with the trial court. Malone v. State, 1900, 77 Miss. 812, 26 968; Lifer v. State, 1940, 189 Miss. 754, 199 So. 107.” 209 Miss. at 873, 48 So.2d at 583.
See also, Dueitt v. State, 225 Miss. 254, 83 So.2d 91 (1955).

In the case at bar, it was within the court’s sound discretion whether a motion for severance should be granted and we cannot say that the court abused its discretion in overruling the motion for severance filed on October 27, 1975 (13 days after arraignment and 1 day before the case was set for trial).

Ivory contends in his second assignment of error that he was entitled to have all references to him stricken from the statement of Buckner.

In Blade et al. v. State, 240 Miss. 183, 126 So.2d 278 (1961), this Court considered a somewhat similar situation. Blade and two co-defendants were jointly tried and convicted of the crime of rape. With reference to the admission into evidence of a prior inconsistent statement of Blade which implicated a co-defendant, this Court said:

“This evidence was clearly in rebuttal as to a previous contradictory statement made by the appellant Blade. Forman v. State, 220 Miss. 276, 70 So.2d 848. Of course, this evidence was admissible as to the appellant Blade and was not to be considered against the other two appellants, and an instruction could have been obtained to this effect Dueitt v. State, 225 Miss. 254, 83 So.2d 91. The trial court could not give this instruction unless it was requested. Gangloff v. State, 232 Miss. 395, 99 So.2d 461.” 240 Miss. at 187-88, 126 So.2d at 280. (Emphasis added).

The record does not reflect that Ivory’s counsel requested such an instruction. The trial court cannot be put in error for failing to give an instruction unless requested in writing to do so. Newell v. State, 308 So.2d 71, 78 (Miss.1975). Furthermore, Ivory’s attorney was given an opportunity to examine co-defendant Buckner concerning this statement but refused to do so.

The statement of Buckner was not introduced until he took the stand in his own defense after the prosecution had rested, and made statements under oath at variance with his prior written statement.

In Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), the confession of a co-defendant, implicating the defendant, was introduced into evidence in the prosecution’s case in chief, with a Delli Pao-li instruction by the trial judge. The co-defendant took the stand in his own defense and denied the confession. Defendant’s counsel did not cross-examine the co-defendant. After discussing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), extensively, the Court stated:

“We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth amendments.” 402 U.S. at 629-30, 91 S.Ct. at 1727, 29 L.Ed.2d at 228.
See also, Cain et al. v. State, 253 Miss. 368, 175 So.2d 638 (1965).

Under the peculiar circumstances of this case, we think that it was proper to allow the prosecution to introduce into evidence Buckner’s prior inconsistent statement to impeach his testimony.

We have carefully considered the third assignment of error and find it to be without merit.

The judgment is affirmed.

AFFIRMED.

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


author: SUGG, Justice, for the Court:

text:
    Carl Ray MILLER v. Jack REED, Superintendent of the Mississippi State Penitentiary.
    Misc. No. 610.
    Supreme Court of Mississippi.
    Aug. 24, 1976.

      Carl Ray Miller, pro se.
    A. F. Summer, Atty. Gen. by William B. Lowrance, Sp. Asst. Atty. Gen., Jackson, for appellee.
   ON PETITION FOR WRIT OF MANDAMUS

SUGG, Justice, for the Court:

Petitioner filed a petition for writ of mandamus alleging that his petition for a writ of error coram nobis filed March 4, 1976, in the Circuit Court of the Second Judicial District of Jones County, had not been heard by that court. Petitioner named the Superintendent of the Mississippi State Penitentiary as respondent.

Petitioner was convicted of murder and sentenced to life imprisonment by the Circuit Court of the Second Judicial District of Jones County. His appeal was dismissed because he was a fugitive from justice when his case was called for hearing. Miller v. State, 311 So.2d 348 (Miss.1975).

The petition must be denied because a necessary party is lacking. A mandamus proceeding to compel a judge of a lower court to perform a duty should name the court as respondent. Process should issue to the judge of that court, except in multi-judge districts, process should issue to the senior judge of the district. The rule concerning necessary parties in a mandamus proceeding is stated in 55 C.J.S. Mandamus § 252 at 470-71 (1948) as follows:

The person or body whose duty it is to perform the act sought to be enforced by mandamus is a necessary, as well as a proper, party respondent or defendant. All persons or bodies on whom a common duty rests may be joined as respondents in a proceeding for the purpose of compelling the performance of that duty, and they are generally required to be joined.
Both those who are willing and those who are not willing to act may be joined as respondents, and although there is authority to the contrary, it has been held that all must be made respondents.

In this case the petition for writ of mandamus named the Superintendent of the Mississippi State Penitentiary as respondent. The Superintendent of the Penitentiary has no authority to hear a petition for writ of error coram nobis and was neither a necessary nor a proper party to the proceedings. The petition should have named the Circuit Court of the Second Judicial District of Jones County as respondent.

PETITION DISMISSED.

All Justices concur.


text:
    Petition of Russel D. MOORE, III, to Expunge Part of a Grand Jury Report.
    No. 49126.
    Supreme Court of Mississippi.
    Aug. 17, 1976.

      Thomas H. Watkins, Alvin M. Binder, George F. Woodliff, Cary E. Bufkin, Jackson, for appellant.
    Dale Danks, Jr., Hinds County Pros. Atty., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice,

for the Court.

The Circuit Court of the First Judicial District of Hinds County, Mississippi (the senior circuit judge) refused to expunge from the report of the Grand Jury, made at the July, 1975, term of the Circuit Court, all references to the non-judicial conduct of Circuit Judge Russel D. Moore, III. Petitioner Moore appeals.

At the July 1975, term, Senior Circuit Judge Leon F. Hendrick charged the Grand Jury to investigate any illegal practice of law by the circuit judges of Hinds County.

The Grand Jury reported that it had examined a number of witnesses and also the books and records of a corporation for which Moore was alleged to have rendered legal services. The Grand Jury report continued:

“After due consideration and serious deliberation, this body must report that it found there exists probable cause sufficient for the return of four (4) indictments that Judge Russell D. Moore, III was periodically rendering legal services as an attorney at law for said corporation from March, 1968 to May, 1970 at the same time he was a circuit judge, contrary to the laws of the State of Mississippi as set forth in Section 9-1-25 of the Mississippi Code of 1972, Annotated. However, this body has been advised and does believe that such alleged acts occurred at such time as to be barred from prosecution by the Statute of Limitations as set forth in section 99-1-5 of the Mississippi Code of 1972, Annotated .
“It is obvious that the two (2) year period of time as set forth in the aforesaid statute of limitations has expired and any further prosecution would be and is prohibited by law.”

The only action that a Grand Jury can take after investigating the conduct of a public officer is to return a presentment or indictment. Section 175 of the Mississippi Constitution of 1890 provides:

“All public officers, for wilful neglect of duty or misdemeanor in office, shall be ’liable to presentment or indictment by a grand jury; . . .” (Emphasis added).

The July, 1975, Grand Jury returned neither a presentment nor an indictment, yet that was the only action that it was authorized to take under the Mississippi Constitution.

In Re Davis, 257 So.2d 884 (Miss.1972), is dispositive of this case. In Davis we said:

“While a grand jury may present any person for indictment, if evidence sufficient to justify an indictment is not introduced in the ex parte proceeding, its power over the matter or offense investigated is terminated unless it falls within one of the four addenda enacted by the legislature in expanding the constitutional powers of a grand jury. It is obvious that the report here was not limited to the grand jury function of indictment or presentment nor was it within the legislative enactments. The grand jury’s report was in excess of that body’s lawful authority. The caustic comments found therein were, therefore, a trespass upon the rights of the appellant even though he be a public official.
“The statement of a grand jury demands respect within a community and its deliberations and conclusions are tantamount to fact in the eyes of the populace. Our judicial system is couched in due process and fairness. Conviction by innuendo resulting from an ex parte proceeding is not compatible with and is extremely offensive to these basic principles of jurisprudence.” 257 So.2d at 887-88. (Emphasis added).

We reiterated the holding in Davis in In Re Williams, 317 So.2d 399 (Miss.1975).

We are of the opinion that all portions of the Grand Jury report referring to the conduct of Judge Moore should be expunged.

REVERSED AND RENDERED.

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


text:
    MONARCH INSURANCE COMPANY OF OHIO v. Grady COOK, Jr.
    No. 48731.
    Supreme Court of Mississippi.
    Aug. 17, 1976.

      Mize, Thompson & Blass, Gulfport, Joseph P. Tynan, New Orleans, La., for appellant.
    Page, Mannino & Peresich, Biloxi, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice,

for the Court:

Monarch Insurance Company of Ohio, a non-resident corporation, insurer of Biloxi Machine Works, Inc., appeals from a judgment for $64,015 rendered against it, and in favor of Grady Cook, Jr., by the Circuit Court of Harrison County on a writ of garnishment suggested by Cook.

Cook first brought suit against Biloxi Machine Works, Inc., a Mississippi corporation, for the loss of his tugboat “Capt. Bull” which sank while being operated on a test run by Biloxi Machine Works, Inc., the contract repairer. This first suit resulted in a judgment for Cook rendered on May 10, 1973, and the writ of garnishment was based on this judgment against Monarch’s insured.

Monarch interposed three affirmative defenses:

First, the insurer was not given notice by the insured “of any legal proceeding being filed against it and further failed, after being served with process, to forward a copy of the Summons to the Garnishee Defendant, and by such actions did thereby relieve any duty of the Garnishee” to defend or indemnify the insured under the policy. In support of this defense, Monarch quoted paragraph 7 of the policy:

“It is further stipulated and is a consideration for this insurance that in the event of any occurrence which may result in loss, damage and/or expense, for which these Assurers are or may become liable under this insurance, notice thereof shall be given to this Company as soon as practicable, and further, that any and every process, pleading and paper of any kind relating to such occurrence shall be forwarded promptly to this Company.” (Emphasis added).

Second, the insured “had removed its vessel to Fletcher’s Shipyard in Pascagoula, Mississippi, . . . and by removal in excess of fifteen (15) miles violated the terms of the policy.” Monarch quoted Paragraph 1A of the policy:

“1. This insurance is to cover the legal liability of the Assured as ship repairers upon the terms and conditions and subject to the limitations hereinafter set forth.
A. This insurance covers the legal liability of the Assured as ship repairers for loss or damage to vessels, craft, and equipment, cargoes, freights, and other interests on board, which are in their care, custody or control for the purpose of alteration or repair at locations within the United States or while such vessels or craft are being shifted and/or moved via inland waters for distances not in excess of fifteen miles in connection with their repair or alteration.” (Emphasis added).

Third, James Garland, president of the insured, Biloxi Machine Works, Inc., “did violate the provisions of Paragraph 8 of the attached insurance policy” by admitting liability for the alleged accident out of which the claim of Grady Cook, Jr. arose. Paragraph 8 provides:

“8. In respect of any accident or occurrence likely to give rise to a claim under this insurance, the Assured is obligated to and shall take such steps to protect its (and the Assurers’) interests as would reasonably be taken in absence of this or similar insurance. This insurance, however, shall be void and of no force or effect, in respect of any accident or occurrence, in the event the Assured shall make or shall have made any admission of liability either before or after such accident or occurrence or in the event the Assured shall interfere in any negotiations of the Assurers for settlement or in any legal proceedings in respect of any claim for which the Assurers are or may be liable under this insurance.”

The circuit judge in his written opinion said:

“After approximately eight months of work on the vessel, a bad vibration was experienced during trial runs. At that time, Jim Garland, President and Manager of Biloxi Machine, decided to take the ‘Capt. Bull’ to the nearest shipyard which could haul the vessel from the water. The vessel was taken to Fletcher’s Shipyard in Pascagoula, Miss., and repairs were made to the vessel after it was hauled from the water.
“At approximately sunset on January 15, 1973, the vessel was returned to the water at Pascagoula. . . . The vessel set out from Pascagoula with Garland acting as master of the vessel and two of his employees acting as crew. . At approximately 3:00 a. m. on the morning of the 16th, Garland was working in the engine room and his employee, Joe Hahn, was steering the vessel. Garland had detected further vibrations in the engine and was working to locate and correct them. Due to either a faulty steering mechanism installed by Biloxi Machine or to oversteering by Hahn, the vessel went into a hard turn at a high speed and capsized. Fortunately, all aboard were rescued.”

The circuit judge in his written opinion found:

“On or about January 28,1973, a notice of loss was transmitted by Mickey Bel-lande, Garland’s Insurance Agent, to Harry Gauthreaux, the Branch Manager for William H. McGee and Company, New Orleans, La. William H. McGee and Company is a General Agent for Garnishee, Monarch Insurance Co. (Hereinafter Monarch Insurance). Gauthreaux employed Arthur Terry, a Marine Surveying Firm, to investigate the. claim. On January 29, 1973, Gauthreaux received Terry’s initial report. Terry’s second report was dated February 8, 1973, and stated that the site of the sinking was 14.1 nautical miles from the Biloxi Machine Yard in Biloxi. (Emphasis added).
“Gauthreaux informed Monarch Insurance that there was no liability under the policy and on February 15,1973, forwarded the claim file to Charles Dittmer, Jr., an attorney in the firm employed to represent Monarch Insurance. On February 16, 1973, Dittmer prepared a memo which stated that ‘. . . There is no coverage due to the shifting over fifteen miles, however, allegations in any suit filed against the assured may require underwriters to afford a defense even though they are unfounded. Any final determination of coverage should await the receipt of petition or complaint against assured . . . ’
“At various times from February 5 through March 15, 1973, Garland repeatedly made phone calls to either Gau-threaux or Dittmer. Although he was told that there was a question of coverage throughout the various conversations, Garland was never definitely told whether the loss was or was not covered under the policy.
“On March 15, 1973, Garland and the attorney for Biloxi Machine, Charles Morris, called Dittmer. Dittmer testified that he told Morris that the coverage was still unclear and that a final determination would have to await the allegations made in any suit filed against Biloxi Machine. Dittmer further testified that Morris assured him that if suit was filed, Morris would send him a copy of the declaration. Morris testified to basically the same conversation but denied any assurance that he would send the declaration. Dittmer advised Morris to tell Garland not to .call him anymore since Garland was represented by Morris.
“Both Morris and Lyle Page, attorney for Plaintiff Cook, had written numerous letters to Dittmer inquiring of Monarch’s position. None of this correspondence was answered.
“On April 20, 1973, Bellande wrote to the Mississippi State Insurance Commissioner alleging that the representatives of Monarch Insurance Company had done nothing about the loss and that ‘My client is at this time being sued by the Biloxi Barge Co., owner of this vessel.’ The letter showed carbons to Gauthreaux and Sam B. Reid Agency, Monarch’s Mississippi Agent. By letter dated April 25, 1973, the Insurance Commissioner’s Office also forwarded a copy of Bellande’s letter to Gauthreaux and the Sam B. Reid Agency. Although Gauthreaux and Ditt-mer admitted receiving the correspondence, no reply was made.”

The circuit judge thus found that actual notice of the occurrence and claim were repeatedly given to Monarch, and that actual notice of the filing of suit was given. Moreover, the Court found that Monarch had in effect denied coverage and thus waived any further notice of the filing of suit.

The lower court was correct in finding against Monarch on its first affirmative defense for these reasons:

1. Paragraph 7 does not provide for voiding coverage for failure to forward a summons;
2. Since Monarch’s general agents and its attorney were given actual knowledge of the suit, there was substantial compliance with paragraph 7;
3. Monarch failed to plead or prove that it was prejudiced by the failure to forward a copy of the summons; and
4.By denying coverage, Monarch waived its right to insist on the forwarding of suit papers.

The second affirmative defense was that the tugboat was moved more than 15 miles and thereby Paragraph 1A of the policy was violated.

Where an insurance contract is susceptible of two reasonable interpretations, the one will be adopted which sustains the claim for indemnity. If the language of the policy is ambiguous it should be construed more strongly in favor of the insured. In addition, the policy terms must be construed in the light of the purposes and hazards against which it was designed to protect. Griffin v. Maryland Casualty Company, 213 Miss. 624, 57 So.2d 486 (1952).

Paragraph 1A would seem to cover two types of risks which are separated by the disjunctive participle “or”. 1A assumes the risk of “the legal liability of the Assured as ship repairers for loss or damage to vessels . . . and other interests on board,”

1. Which are in their care, custody or control for the purpose of alteration or repair at locations within the United States,
OR
2. While such vessels or craft are being shifted and/or moved via inland waters for distances not in excess of 15 miles in connection with their repair or alteration.

Clearly at the time of the sinking, the insured was within the terms of the first alternative of paragraph 1A of the policy. The “Capt. Bull” was in the care, custody and control of the insured’s president, Garland. He was acting as master of the vessel while two of his employees were acting as the crew. The proof shows that the vessel had been placed in insured’s possession for extensive repairs. Repairs were actually being performed by Garland, who was in the engine room attempting to remedy a vibration at the time of the sinking. Also, clearly, the repairs were being performed at a location within the United States.

The circuit court concluded:

“[I]t is this Court’s finding that the loss incurred fell within the terms of the ‘legal liability’ of defendant Biloxi Machine as ship repairers for loss or damage to vessels . . . which are in their care, custody and control for the purpose of alteration or repair at locations within the United States.’ The loss was within the risk reasonably contemplated by the parties as covered by the policy.”

This Court agrees with this conclusion. It is abundantly supported by both the evidence and the law.

In answer to the third affirmative defense, suffice it to say that no collusion or fraud between plaintiff Cook and defendant Biloxi Machine Works was charged, nor was any evidence of collusion or fraud adduced. The coperation clause of the policy does not require the insured to falsify any of the facts or put up a sham defense.

The findings of fact and conclusions of law of the lower court are amply supported by the evidence, and its judgment should be affirmed.

AFFIRMED.

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


author: PATTERSON, Presiding Justice:

text:
    Issac NIXON v. STATE of Mississippi.
    No. 49208.
    Supreme Court of Mississippi.
    Aug. 17, 1976.

      William S. Boyd, III, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   PATTERSON, Presiding Justice:

Issac Nixon was convicted of armed robbery by the Circuit Court of the Second Judicial District of Jones County and sentenced to thirty years in the state penitentiary.

“ On December 2, 1974, the Fifth Avenue Package Store in the city of Laurel was robbed. Edward Vance, the proprietor, opened the store on the day of the robbery and served several customers. His next customer came into the store and requested a bottle of wine. When Vance turned to obtain the wine, the customer rushed around the counter and stuck a pistol in his ribs, forcing him to lie upon the floor. The customer, turned robber, unsuccessful in his attempt to open the cash register, directed Vance to open it and after he had done so, forced him at gunpoint to again lie on the floor. The thief rifled the cash register and departed leaving Vance tied and gagged. Vance was able thereafter to sound an alarm and notify the authorities of the robbery.

The police officers in their investigation lifted a latent fingerprint from the cash register and acting upon a tip obtained the known fingerprints of Nixon, the appellant, from their files. These fingerprints were sent to the Federal Bureau of Investigation for comparison. Their examination revealed the prints were those of the same person, thereby identifying the appellant. He was also identified in court by Vance as the person who had robbed him.

The appellant presently contends that the trial court erred in permitting the latent fingerprint into evidence because its “chain of custody” was not established, erred in permitting the known fingerprints into evidence because they were taken when he was a youth and erred by not requiring the state to prove the lawfulness of his arrest when the known fingerprints were obtained.

The first issue arises from the testimony of- the Federal Bureau of Investigation fingerprint specialist. She stated the latent fingerprint card was within an unopened plastic container when she received it for comparison. The state’s attorney then asked: “And who broke the seal on it when it was retrieved from the storage vault?” The witness responded: “As far as I know probably Mr. DeRonja since he was assigned the case over in the lab. Frank J. DeRonja.” From this testimony it is argued the latent print was erroneously intro-' duced as evidence to establish the appellant’s identity because Frank DeRonja was not called as a state witness to establish the latent fingerprint’s complete chain of custody. We are of the opinion this contention is without merit. In Nix v. State, 276 So.2d 652 (Miss.1973), we held:

The chain of custody of evidence in control of the authorities is usually determined within the sound discretion of the trial judge, and unless this judicial discretion has been so abused as to be prejudicial to the defendant, this Court will not reverse the rulings of the trial court. Wright v. State, 236 So.2d 408 (Miss.1970); See also Gallego v. United States, 276 F.2d 914 (C.C.A.9th, 1960). The test is whether or not there is an indication of probable tampering with the evidence. Stunson v. Florida, 228 So.2d 294 (Fla.App.1969). In such matters the presumption of regularity supports the official acts of public officers. Gallego v. United States, supra. (276 So.2d at 653)

See also Grady v. State, 274 So.2d 141 (Miss.1973). We discern no evidence in the record supporting a theory of wrongful tampering with the evidence, or the probability thereof. The presumption of regularity supports the acts of public officers in their custody of the latent fingerprint. We therefore think it was properly introduced into evidence.

It is next urged that the known fingerprints were improperly introduced into evidence because they were obtained in contravention of Mississippi Code Annotated section 43-21-19 (1972) which states in part:

No adjudication upon the status of any child shall operate to impose any of the civil disabilities ordinarily imposed by conviction of adults, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction. The disposition of a child or any evidence given in the court in any proceedings concerning him shall not be admissible against the child in any case or proceeding in any other court. However, any such records, including names, shall be made available to any office or agency of the State of Mississippi or any subdivision thereof upon the request of such agency or subdivision. (Emphasis added.)

In rejecting this argument we first observe there is no evidence indicating the known fingerprints were given in evidence in a youth court proceeding, a prerequisite to inadmissibility by the terms of the statute. Moreover, law enforcing officers are authorized by Mississippi Code Annotated section 99-15-13 (1972) to take the fingerprints of those charged with crime for identification purposes. See Newton v. State, 321 So.2d 298 (Miss.1975). We are of the opinion, from the present circumstances, that Mississippi Code Annotated section 43-21-19 (1972) did not bar the introduction of the known prints into evidence.

The argument next advanced for reversal is that the state should have substantiated by testimony the lawfulness of Nixon’s arrest in 1969. While it can be deduced from the evidence that Nixon was arrested for shoplifting when a youth in 1969 and his fingerprints taken, there is nothing to indicate the arrest was without probable cause or was otherwise unlawful. The appellant was afforded every opportunity to substantiate his suggestion that probable cause did not exist for the arrest, but declined to do so, leaving the issue resting upon the premise “the state hasn’t proved that the print was taken as a result of a lawful arrest and for the additional reason that he was a minor.” In Raper v. State, 317 So.2d 709 (Miss.1974), we held there is a strong presumption that the actions of law enforcement officials are valid. The presumption of validity extends to Nixon’s arrest in 1969 and being unchallenged by testimony to support the appellant’s theory of unlawful arrest, it prevails. We therefore think the appellant’s argument is without merit.

Our review of the record discloses a fair trial and sufficient evidence to support the conviction.

AFFIRMED.

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