author: BROOM, Justice, PATTERSON, Chief Justice,

text:
    ITT INDUSTRIAL CREDIT COMPANY and Fireman’s Insurance Company v. S. L. ROBINSON and Raymond Jones, d/b/a Novelty Machine Works and Mississippi Road Supply Company.
    No. 49423.
    Supreme Court of Mississippi.
    Sept. 21, 1977.

      Daniel, Coker, Horton, Bell & Dukes, Thomas H. Suttle, Jr., Jackson, for appellant.
    Wise, Carter, Child, Steen & Caraway, Henderson S. Hall, Jr., Caldwell, Richardson & Caldwell, T. Eugene Caldwell, Thomas J. Richardson, Jackson, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   BROOM, Justice,

for the Court:

Priority of liens (mechanics’ and security instrument liens) is the dominant aspect of this suit appealed from the Circuit Court of the First Judicial District of Hinds County. The constitutionality of Mississippi Code Annotated § 85-7-31 and § 85-7-105 (1972) is also challenged. Judgment below was in favor of mechanics’ lienholders, appellees: S. L. Robinson and Raymond Jones, d/b/a Novelty Machine’Works (Novelty), and Mississippi Road Supply Company (MRS), and against appellants: security instrument lienholder ITT Industrial Credit Company (ITT) and the surety on ITT’s replevin bond, Fireman’s Insurance Company (Fireman’s). We affirm.

Undisputed facts are as follows. On April 21, 1972, Thorp Commercial Corporation purchased from MRS a machine known as a Payloader for a consideration of $54,-602.79. That same day Thorp leased the Payloader to Perry Vance and Devard Vance, d/b/a Vance Construction Company (Vance), as evidenced by a lease purchase agreement. The agreement provided that lessee Vance was solely responsible for upkeep and maintenance of the Payloader. Within the next two weeks, Thorp filed financial statements with the Secretary of State and the Chancery Clerk of the Second Judicial District of Hinds County. Subsequently, the financing paper was assigned by Thorp to ITT. Between January 1973 and July 1974, at the request of Vance, MRS repaired the Payloader for which the total charge (labor and parts) was $10,-915.42, which remains entirely unpaid. In November 1973 Novelty made other repairs to the Payloader for which the total charges (labor and parts) amounted to $3,186.74, of which $500 was paid. Stipulation of the parties shows that these repairs were “reasonable and necessary.”

Early in January 1975 Vance was in arrears on his payments and informed ITT that he was unable to continue the payments. At ITT’s request, Vance returned the Payloader to MRS. On January 6,1975, ITT advised Vance and MRS of its intention to sell the equipment at private sale. Then on January 13,1975, Novelty filed suit (affidavit) to enforce its mechanics’ lien on the machine and a writ was issued for seizure of the property. MRS and ITT were made parties and asserted their respective mechanics’ and security instrument liens. Hearing of the matter was in County Court (Hinds County) in April 1975, but on motion of MRS the cause was transferred to circuit court upon discovery that the amount in controversy exceeded what was considered county court jurisdictional limits. Prior to trial in circuit court, ITT filed its replevin bond with Fireman’s as its surety and received possession of the Payloader. By agreement (jury waiver), the matter was tried by the circuit judge who entered a $2,988.09 judgment for Novelty, and a $12,-410.53 judgment for MRS against ITT and Fireman's, jointly and severally.

I.

Constitutionality of Mississippi Code Annotated §§ 85-7-31 (writ of seizure statute) and 85-7-105 (1972) was not properly raised or preserved at the trial (circuit court) level and we do not reach that question here. At the county court level, ITT challenged the constitutionality of the two cited statutes by motion to dismiss. Prior to the taking of testimony of the first witness in county court, the record shows the following:

BY THE COURT:
All right. I will now hear argument on the Motion to Dismiss.
(Argument by counsel follows).
BY THE COURT:
The Court is going to overrule the motion. We will proceed.

The plaintiff (in county court) next put on one witness and rested. In county court only one defense witness was heard during the trial prior to lunch break, and after lunch, upon motion of MRS, the cause was transferred to circuit court. Prior to the circuit court trial, río new declaration or answer was filed, although certain amendments were made. A full-blown de novo trial transpired in circuit court, but the record of the trial, including the final judgment, makes no mention or adjudication whatever of the constitutionality of sections 85-7-31 and 85-7-105, supra. Under Mississippi Code Annotated § 9-9-21 (Supp. 1976), it is arguable that the county court actually had jurisdiction because the statute as amended in 1974 provides that county court jurisdiction “shall not be affected by any set-off, counterclaim . . . ” which exceeds $10,000. No objection to the transfer was raised by ITT and thus there is no issue here concerning the transfer of the cause. Inasmuch as the transferral order specifically provided “for a trial de novo,” in order for ITT and Fireman’s to base their defense on alleged unconstitutionality of the two statutes and preserve the point for argument on appeal, they should have caused the record to reflect a request for a ruling upon this issue by the circuit judge whose final judgment is here for review. Having failed to do so, ITT and Fireman’s waived the proposition on constitutionality of the statutes. Stewart v. City of Pascagoula, 206 So.2d 325 (Miss.1968).

II. PRIORITY OF LIENS

Thorp purchased the Payloader from MRS and delivered it to Vance under a lease agreement which Thorp filed with the Secretary of State in Hinds County and with the Chancery Clerk of the Second Judicial District of Hinds County. Then Thorp assigned the financing paper to ITT. No argument is made that the instrument of agreement between Thorp and Vance was not a security instrument within the purview of our Uniform Commercial Code (U.C.C.) — Mississippi Code Annotated § 75-9-101 (1972), et seq., although the instrument has more aspects of a lease than of a true security interest instrument'. A financing statement was signed by Vance in favor of Thorp and filed, and upon this record and briefs before us we treat the lease-purchase agreement as a security instrument and not as a mere lease.

Perfection of a security interest in a case such as this requires filing of the financing statement pursuant to Mississippi Code Annotated § 75-9-302. § 75-9-401(l)(c) states that the proper place for a party situated, as Thorp in the instant case to file its financing statement is the office of the secretary of state and the chancery clerk’s office of the county in which the debtor’s only place of business is located. Here Vance, whose address was listed as Route 4, Box 210, Jackson, Hinds County, Mississippi, actually had his place of business in Rankin County and Vance testified that the Payloader was used exclusively in Rankin County. Thorp’s filing of the financing statement with the chancery clerk’s office in Hinds County was not in the proper county because Vance having his sole place of business in Rankin County made that county the proper county in which to file.

Mississippi Code Annotated § 75-9-401(2) provides that where a filing is made in good faith in an improper place, it is nonetheless effective against one having knowledge of its contents. § 75-1-201(25) defines knowledge of a fact as actual knowledge and there is no doubt that in this case MRS had actual knowledge of the contents of the financing statement. Witness Green, who testified for MRS, stated that he knew Vance was making payments to Thorp and that Vance was “supposed to be building up equity all the time he was making payments on the machine.” Even if MRS were unaware that a financing statement had been filed, these facts clearly show that MRS had knowledge of the contents of the financing statement. Thus, under § 75-9-401(2), Thorp’s security instrument was perfected as against MRS and that security interest continued to be perfected under Mississippi Code Annotated § 75-9-302(2) (1972) when it was assigned to ITT.

As to Novelty, we must reach a different conclusion because Novelty had no knowledge of the contents of the financing statement. Where the holder (ITT here) of the unperfected security interest seeks to prevail over a lien creditor (Novelty, which held a mechanic’s lien), the burden of proof is upon the holder of that unperfected security interest to show that, when the lien creditor (Novelty) became such, he had knowledge of the existence of the security interest. 4 R. Anderson, Uniform Commercial Code § 9-301:8 (2d ed. 1971). The record fails to show that ITT met its burden of proof in this aspect of the case and therefore its security interest fails as to Novelty. § 75-9-301(l)(b) provides that an unperfected security interest is subordinate to the rights of one who becomes a lien creditor without knowledge of the security interest and before it becomes perfected. It follows that Novelty (lien creditor) as holder of a mechanic’s lien prevails over ITT whose security interest was not perfected as against Novelty.

Inasmuch as ITT’s security interest has been determined under § 75-9-401(2) to be perfected as to MRS, we must consider § 75-9-310:

When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.

Under the facts here, Vance, after incurring the substantial indebtedness with MRS and Novelty, was unable to make further payments under the lease agreement and defaulted. Perry Vance contacted the ITT leasing office in New Orleans with an offer to relinquish the Payloader to ITT. Acting upon the instructions of that office, Vance delivered the machine to the original seller, MRS (also mechanic’s lienholder), which remained in possession of the Payloader at the time of the commencement of this suit.

We recently held in Thorp Commercial Corp. v. Mississippi Road Supply Company, 348 So.2d 1016 (Miss.1977), that where the lessee-purchaser voluntarily restores personal property to the possession of the holder of a mechanic’s lien on that property, the lienholder has a lien upon goods in its possession within the meaning of § 75-9-310, and such lien takes priority over a perfected security interest.

Although this writer was among those dissenting in Thorp, supra, the decision in that case is controlling here. Consequently we hold that the lower court was correct in finding the lien of MRS superior to the perfected security interest of ITT.

Other issues raised are without merit, and there being no error shown, the judgment of the lower court is affirmed.

AFFIRMED.

INZER and SMITH, P. JJ., and ROBERTSON and LEE, JJ., concur.

PATTERSON, C. J., and SUGG and WALKER, JJ., dissent.

BOWLING, J., took no part.

PATTERSON, Chief Justice,

dissenting:

I acknowledge that Thorp Commercial Corporation v. Mississippi Road Supply Company, 348 So.2d 1016 (Miss.1977), lends itself to the interpretation that “where the lessee-purchaser voluntarily restores personal property to the possession of the holder of a mechanics lien on that property, the lienholder has a lien upon goods in its possession within the meaning of Section 75-9-310, and such lien takes priority over a perfected security interest.”

I remain of the opinion that the legislature never intended priorities of creditors to be determined by a debtor returning possession to a lienholder, a repairman, thus favoring him, or withholding it and establishing priority to a secured creditor, thus favoring him. I think it intended to establish the priorities of creditors by a more uniform and orderly method, to-wit, Section 75-9-310 as stated in the dissent in Thorp, supra.

SUGG and WALKER, JJ., join in this dissent.


source: Caselaw Access Project

author: ROBERTSON, Justice,

license: Public Domain

text:
    In the Interest of Niles Dwain EVANS, minor.
    No. 49939.
    Supreme Court of Mississippi.
    Sept. 21, 1977.

      Leon Johnson, West Point, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, ROBERTSON and BOWLING, JJ.
   ROBERTSON, Justice,

for the Court:

The Chancery Court of Choctaw County, acting as the Youth Court, after a full hearing at which Niles Dwain Evans, a 16-year-old minor; his parents, Niles William Evans and Mrs. Agnes Stevens Evans; and Leon Johnson, Attorney for Dwain Evans, were present, found and adjudicated on June 25, 1976, that Niles Dwain Evans was a delinquent child under paragraph (g) of Mississippi Code Annotated section 43-21-5 (Supp.1976).

The court further found:

“[T]hat disposition of this child’s custody and/or commitment should be postponed until such time as said child can undergo psychological and psychiatric examinations and evaluation by the proper facilities and the results thereof furnished this Court.”

On August 30, 1976, the Youth Court entered an “Order Placing Child on Probation” which order, among other things, provided:

“The Court is now in receipt of such evaluation and the reports incidental thereto. At the aforesaid hearing this Court advised counsel for the above named child that he would be given an additional opportunity to present evidence at the disposition hearing after the psychiatric examination was completed and the report submitted. Counsel for said youth has now advised the Court that he does not desire to present any further evidence. Therefore, the Court finds that there is no reason for an additional hearing, and the Court is now in a position to make disposition with the aid of the evidence presented at the adjudication hearing combined with the reports which the Court has received from the youth court counselor, from the psychologist and psychiatrist.
“Based upon the evidence adduced upon the trial of this cause and on the above mentioned data available to the Court concerning this juvenile, it is the opinion of the Court that said child, Niles Dwain Evans, should be committed to the Oakley Training School, with the sentence suspended subject to certain probationary conditions for his behavior and guidance, the period of his probation to be until July 1,1977 unless for good cause the Court should find that the same should be extended.
“The Court further finds that during the term of his probation, said child should be required to report periodically to the youth court counselor for progress reports; that a curfew, attendance at school should be imposed, and that in addition, in view of the data involving this youth, all members of his family should participate in guidance counseling through the mental health center serving Choctaw County for such period of time and under such terms and conditions as the personnel of such mental health center should recommend for the benefit of this minor and his family.”

The assignments of error are that the court erred:

(1) In committing appellant because the petition was insufficient;
(2) In overruling appellant’s motion to strike the petition because the petition was not authorized to be filed by the Youth Court judge;
(3) In overruling appellant’s motion to strike the petition because ownership of the A. W. Cagle house was not proved;
(4) In overruling appellant’s motion to strike the petition charging burglary, because the proof was insufficient to sustain the charge; and
(5) In ordering all members of appellant’s family to participate in guidance counseling through the Mental Health Center serving Choctaw County.

The appellant contends that the petition does not adequately charge the essential elements of the crime of larceny. The petition does set forth all the essential elements of the crime of burglary and that was the main charge against the minor. It did include this language:

“with the wilful, unlawful and felonious intent to take, steal and carry away the personal property of said owners of said homes found therein, . . . .”

This language was sufficient, under the rule announced in Newbarn v. State, 205 So.2d 260 (Miss.1967).

On the question raised in the second assignment of error, the Youth Court had ruled:

“The Statute referred to [sec. 43-121-11 (43-21-11)] does not provide the form for the authorization from the Court. The policy in this District is to require all law officers to contact the Court before a child is incarcerated. This Court directed that this child not be incarcerated. The Court was advised that he had allegedly committed some acts of burglary and the Court verbally authorized the County Attorney to file a petition involving this child on the allegations that he had allegedly committed acts of burglary. I am of the opinion that that is all that is required. There is no formality. At some point you have to initiate and you simply must obtain permission of the Court to initiate it.” [Emphasis added].

We think that this oral authorization was sufficient.

As to the third assignment of error, the proof showed that Deborah Cagle, the 15-year-old daughter of A. W. Cagle, was at home at the time of the appellant’s forceful entry, and when she saw appellant she asked him “what are you doing in my house?”

This Court said in Taylor v. State, 214 Miss. 263, 58 So.2d 664 (1952):

“This Court has held in several cases that in an indictment for burglary the allegations as to the ownership of the title to the building constitute surplusage, and, insofar as the burglary is concerned, the occupant of the building at the time of the burglary is the owner, and no such particularization of description of the title to the building is required.” 214 Miss, at 266, 58 So.2d at 665.

The Youth Court was correct in overruling appellant’s motion to strike.

Assignment of error number 4 is without merit because the proof was sufficient to sustain the charge of burglary of at least two of the four homes charged in the petition.

For the welfare of the child adjudged delinquent, the Youth Court does have the authority to require the parents of the delinquent youth to participate in guidance counseling as it did in the ease at bar. Mississippi Code Annotated section 43-21-25 (1972) provides:

“In all cases where the child is found to be a neglected or delinquent or battered child, as defined in this chapter, the parent or parents, or guardian, or person or persons having the custody of such child, or any other person, who, by any act or acts of wilful commission or omission, is found by the court to be encouraging, causing or contributing to the neglect or delinquency or battering of such child, may be required by the court to do or omit to do any act or acts which the judge may deem reasonable and necessary for the welfare of such child.”

The youth court did provide competent counsel for the youth, Niles Dwain Evans, and it was not necessary nor required that the youth court provide counsel for the parents of Dwain Evans. See Miss. Code Ann. sec. 43-21-17 (Supp.1976).

The order of the Youth Court is, therefore, affirmed.

AFFIRMED.

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


text:
    Rayburn FREDERICK v. Patricia A. FREDERICK.
    No. 49998.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Carnathan & Davidson, Gary L. Carna-than, Tupelo, for appellant.
    Mitchell, Rogers, Eskridge, Voge & Clayton, Dennis W. Voge, Tupelo, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   AFFIRMED.


author: BOWLING, Justice, SMITH, Presiding Justice,

text:
    Woody L. COLEMAN v. STATE of Mississippi.
    No. 49851.
    Supreme Court of Mississippi.
    Sept. 28, 1977.

      Aubrey M. Childre, Pearl, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   BOWLING, Justice,

for the Court:

Appellant was convicted of rape in the Circuit Court of Rankin County and sentenced to serve a term of thirty years under the jurisdiction of the Department of Corrections. He appeals, alleging several assignments of error. We shall discuss only two. No purpose would be served in discussing the evidence except as it relates to these two assignments of error.

The jury had retired to consider its verdict. According to the record, “after a period of deliberation,” the circuit judge had the jury brought to the courtroom and gave the following additional charge, to wit:

This is an important case. If you should fail to reach a decision, the case is left open and undecided: Like all cases, it must be decided sometime. Another trial would be a heavy burden on both sides. There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.
Also, there is no reason to believe that the case would ever be submitted to twelve people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were.
These matters are mentioned now because some of them may not have been in your thoughts.
This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion so that this cause may be completed.
You may be leisurely in your deliberations as the occasion may require and take all the time you feel necessary. The giving of this instruction at this time in no way means it is more important than any other instruction. On the contrary, you should consider this instruction together with and as a part of the instructions which I previously gave you. You may now retire and continue your deliberations in such manner as may be determined by your good judgment as reasonable people.

After this charge was given, the jury was returned to the jury room. The attorney for the defendant then dictated a motion into the record requesting a mistrial because of this additional instruction, stating that it was a form of the “Allen” instruction which put pressure on the jury to compromise and return a verdict. In overruling the motion, the Court said: “The motion is overruled. The Mississippi Supreme Court having expressly approved the giving of the Allen charge.”

The lower court was in error in its opinion of the law as quoted above, and erroneously gave the version of the now infamous “Allen” charge. In the case of Sharplin v. State, 330 So.2d 591 (April 20, 1976), this Court, in condemning the giving of the “Allen” charge in any form, stated: “Following publication of this opinion, the ‘Allen charge’ in any of its various forms should not be given.”

This opinion was published on May 27, 1976. The trial of appellant was had on July 28,1976, two months after the publication of the Sharplin opinion quoted above. This made the charge given to the jury obviously erroneous and constitutes reversible error.

One other assignment of error needs to be discussed. The incident resulting in the indictment occurred on March 21, 1976. The State introduced a physician as one of its witnesses who testified that on May 24, 1976 (approximately two months after the incident) he examined the young alleged victim of the crime. He found that her hymen was torn in an irregular manner and that the tear was well healed. He further testified that he could not tell from his examination at that time how long before the examination this tear had occurred. He estimated that it could have been as far back as eighteen months prior to the examination.

On cross-examination of the alleged victim of the crime, the attorney for appellant attempted to elicit from her whether anything “like this” had happened earlier. The State’s objection to this cross-examination was sustained. We are of the opinion that this was error. Although the testimony of the alleged victim was prior to that of the physician, it is recognized in the trial of criminal cases, particularly in recent times, that the evidence held by the State is generally known prior to the trial. We assume that this was the reason appellant’s attorney made an effort to elicit the information from the young alleged victim. Of course, it would have been a better procedure for appellant’s attorney to have made a more complete record of this attempt either by placing a clear statement of his intentions in the record or by witnesses who would justify introducing the evidence requested. This is a close question under the record before us, but considering all the evidence we are of the opinion that appellant’s attorney should have been permitted to elicit the information sought from the alleged victim.

The cause, therefore, is reversed and remanded for a trial before another jury.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER, P. J., and SUGG and WALKER, JJ., concur.

SMITH, P. J., and ROBERTSON, BROOM and LEE, JJ., dissent.

SMITH, Presiding Justice,

dissenting:

I respectfully dissent from the conclusions reached by the majority. I agree that the charge as given violated restrictions as set up in Sharplin v. State, 330 So.2d 591 (Miss.1976), and although it did not reach the prejudicial proportions of the so-called Allen Charge, would have constituted reversible error if the question had been properly preserved. While by no means as strong as the famous or infamous Allen Charge, by inescapable inference it placed undue emphasis upon the supposed duty of the minority to think long and hard before clinging to its views in the face of contrary views held by the majority. However, no objection was interposed to the giving of the charge and a motion for a mistrial was not made until after it had been given in its entirety and the jury had returned to its deliberations.

The trial court was, of course, mistaken in stating that this Court had approved the giving of the Allen Charge. On the contrary, the giving of charges of this nature has been condemned and strictly limited by this Court. Sharplin, supra.

The giving of any charge to a “hung jury” which even by inference suggests that conscientious convictions of any juror should yield to the views of others in order that a unanimous verdict may be reached is a delicate and hazardous undertaking if it goes beyond “please retire and continue your deliberations.”

When it became apparent that the court would further instruct the jury at this juncture, it was incumbent upon counsel immediately to take some affirmative action to prevent the giving of any charge until he had been afforded an opportunity to know what it would be, and this is so even if it meant interrupting the court. If done, as it should and can be done, courteously and with deference, this will result in no prejudice nor in any contretemps whatever. Counsel should request at the earliest moment in such circumstances a copy of the instruction and a hearing in chambers as to its propriety. If a hearing is granted, as it almost certainly would be, counsel must then interpose such objections as he may deem appropriate. If, in the unlikely event that the court should refuse to disclose to counsel the nature of the proposed instruction, when so requested or to grant him an opportunity to object to it, the record will reflect counsel’s requests and the trial court’s action in denying them and a motion for a mistrial will then not be too late if counsel’s objections shown by the record should prove to be well taken. In this case, counsel allowed the charge to be given in its entirety without demur, and took no affirmative action of any kind to prevent it. In my view it was too late to base a motion for a mistrial upon the trial court’s action in giving the instruction under such circumstances.

The second ground upon which the majority has based reversal of the conviction is that the court improperly denied counsel the right to cross-examine the victim as to whether she had experienced any previous sexual encounter. This was to show that the torn hymen, disclosed by the medical examination, might not have occurred as the result of an assault by appellant. In view of the delay which had transpired before the assault was reported by the victim, and the long delay before the medical examination and discovery of the torn hymen, I would agree that this would have constituted reversible error if there were any support in the record for the suggestion of a previous sexual incident. However, the question was asked, the objection sustained, and nothing further was done. There was no offer of proof nor any request to be allowed to make a record by examining the witness on the point outside the hearing of the jury. Nor was anything offered on the motion for a new trial to indicate that if the witness had been required to answer she would have admitted a previous incident as the result of which the hymen might have been torn. In the final analysis, there is nothing in the record reflecting, or even capable of supporting an inference, that the answer of the witness would have disclosed a previous sexual experience of any kind. There is no reasonable basis appearing in the record for expecting that, upon retrial, there will be any evidence, from the victim or anyone else, supporting what is, after all, a mere speculation that the victim has had previous sexual experience.

It is certainly conceivable that when the victim is asked the question on retrial she will answer no, that she has had no previous sexual experience. It is also conceivable that the defense will not be able to offer any evidence to show that her statement to that effect is false. This seems to me to be quite likely since no evidence as to previous sexual experience was offered at the former trial and I think this must be regarded as indicating, to some extent, that there was not any. In such an event, the reversal and retrial of the case because of the sustaining of the objection to the question would have resulted in a complete futility.

I agree that there are some aspects of the case which, when viewed from the whole record, do not appear wholly satisfactory. These principally consist of the delay in the report of the incident by the victim, the delay in the medical examination, and in the doctor’s indefinite opinion that he was unable to fix the time of the injury to the hymen more definitely than that it had occurred at some time within the past 18 months. On retrial, it is hoped, the facts and circumstances will be more fully explored.

ROBERTSON, BROOM and LEE, JJ., join in this dissent.


author: LEE, Justice,

text:
    STATE of Mississippi, for the use and benefit of Jimmy P. Wise v. Rudy RICHARDSON and National General Insurance Company.
    No. 49899.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Thomas D. Berry, Jr., Gulfport, for appellant.
    Stuart Robinson, Jackson, for appellees.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

The Circuit Court of Harrison County entered judgment in favor of Jimmy P. Wise against Constable Rudy Richardson and National General Insurance Company, his surety, in the sum of thirty-five hundred dollars ($3,500.00) for abuse of process. Subsequently, the trial court sustained a motion for new trial filed by Richardson and National General. Wise has appealed to this Court.

The only error assigned and argued by Wise is that the trial court erred in granting a new trial when there was no showing that the jury was influenced by an attempted jury tampering.

None of the parties have considered Mississippi Code Annotated § 11-7-213 (1972) or the question presented by it. That section disposes of the case, and we raise the question on our own motion.

Mississippi Code Annotated § 11-7-213 (1972) provides:

“Every new trial granted shall be on such terms as the court shall direct; and no more than two new trials shall be granted to the same party in any cause. Provided, however, that when the sole ground for a new trial is the excessiveness or inadequacy of damages assessed, the party aggrieved may elect to appeal from the order granting a new trial." (Emphasis added).

The statute was construed in City of Meridian v. Dickson, 266 So.2d 143 (Miss.1972) and cases previous thereto. This Court said in City of Meridian v. Dickson:

“The purpose of the amendment permitting appeals from an order granting a new trial because of the excessiveness or inadequacy of damages was to allow that issue to be determined without the necessity of a second trial. The use of the word ‘sole’ in the last sentence manifests an intent on the part of the legislature that as far as the appellant was concerned the only issue that the party appealing could raise was the amount of damages. Thus, the only issue that the party appealing can raise is whether the trial court abused its discretion in granting a new trial on the question of damages only. Dendy v. City of Pascagoula, 193 So.2d 559 (Miss.1967).” 266 So.2d at 144.

See also Byrd v. Sinclair Oil and Refining Co., 240 So.2d 623 (Miss.1970).

Since there is no basis for appeal here on the error assigned, the appeal must be and it is dismissed.

APPEAL DISMISSED.

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


text:
    Bobbie HULL v. STATE OF Mississippi.
    No. 49922.
    Supreme Court of Mississippi.
    Sept. 28, 1977.

      King & Arnold, James H. Arnold, Jr., Durant, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court.

Bobbie Hull was indicted and tried for murder in the Circuit Court of Attala County. From a conviction of manslaughter and sentence of twelve (12) years she appeals here.

Appellant assigns and argues the following errors in the trial below:

(1) The trial court erred in refusing appellant’s requested Instructions D-7, D-8, and D-9.

(2) The trial court erred in granting the State’s Instruction S-3.

Bobbie Hull, a 28-year-old female, was married to Ernest Hull. Five children were born to the union. For a long period of time, there had been domestic trouble between the Hulls. He frequently struck and threatened her, and, at the time of the homicide, they were separated. Appellant lived in her mother’s house with the children and Hull visited them and had the children visit in his home.

About 6:15 p. m. on August 29,1975, Hull drove to appellant’s home and stopped his car about five (5) feet from a window in which she was sitting. Appellant testified that she told him not to come into the house, that the children were scared and were crying, and that he could come back and get them the next evening. She further testified that he said, “He wasn’t going to do it, that he was coming in and get the boys (all five children were boys) and he was going to kill me.” Hull got out of the car, went around same and started toward the gate. He spoke to people who were sitting on the front porch of a house across the street approximately forty (40) feet away. Those persons did not hear any conversation between appellant and deceased, except one witness, who was in the yard, stated she heard appellant tell him not to come into the house and to go away. When Hull got to the gate, appellant appeared at the door about fifteen (15) feet away and shot him in the right chest with a .38 caliber revolver. He turned and fled toward the house across the street where the people were sitting and, as he ran, appellant followed him and shot a second time, but missed him. Hull jumped up onto the neighbor’s porch, fell face forward and expired.

I.

Did the court err in refusing appellant Instructions Nos. D-7, D-8 and D-9?

The above instructions all deal with defense of a person’s habitation. Appellant relies upon the case of Bowen v. State, 164 Miss. 225, 144 So. 230 (1932). In that case, one McFerrin had been molesting Mrs. Bowen, repeatedly came to her home in the absence of her husband and made lewd proposals to her. She warned him not to come back. On the occasion of the homicide, McFerrin had entered her home. She obtained a shotgun and made him leave. He went out one door and started back in the house through another door with the avowed purpose of raping her. It was at that point when he was entering the house that she shot him. In Bowen, the State was granted an instruction on murder and no manslaughter instruction was asked for or granted. The Court held that, at most, the facts of the case could not support a verdict of any conviction greater than manslaughter and that the murder instruction entirely ignored the defense of habitation. No instruction on defense of habitation was asked for or granted.

Mississippi Code Annotated § 97-3-15 (1972) defines justifiable, homicide as being “ . . . (e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling-house in which such person shall be; . ”

Instruction No. D-10 [Appendix I], granted at the request of appellant, advised the jury that she had a right to keep a pistol in her house and to kill the deceased, if it reasonably appeared to her that he was undertaking to force an entrance into her house with the design to do her some great personal injury. That instruction presented the defense of habitation issue and the last part “ . . . with the design to do her some great personal injury” followed the evidence of the appellant to the effect that “He was coming in . and he was going to kill me.” The instruction adequately set forth appellant’s right to protect her domicile from unlawful entry. Ross v. State, 234 Miss. 309, 106 So.2d 56 (1958).

Instruction No. D-6 [Appendix II] told the jury that, if they believed the deceased was larger and stronger than defendant (he weighed 260 lbs., she weighed 120 lbs.), and that she was liable to receive serious bodily injury at his hands, she was justified in shooting him to defend herself from attack, even though the deceased was wholly unarmed. Under the facts of this case, the jury having been instructed on the defense of habitation and on self-defense, it was not error to refuse the other three instructions relating to defense of habitation.

II.

Did the court err in granting Instruction No. S-3 for the State?

The instruction defines “malice,” is a dangerous instruction and should not have been given. Pittman v. State, 297 So.2d 888 (Miss.1974); Ellis v. State, 108 Miss. 62, 66 So. 323 (1914); McDonald v. State, 78 Miss. 369, 29 So. 171 (1901). However, no objection was made to the instruction, and under Supreme Court Rule 42, the Court will not consider the assignment. Petty v. State, 332 So.2d 413 (Miss.1976); Evans v. State, 315 So.2d 1 (Miss.1975).

Further, the instruction dealt with the crime of murder. Since the appellant was found guilty of manslaughter, it is apparent that the jury was not influenced by the malice instruction and was not prejudiced thereby. Hailes v. State, 315 So.2d 917 (Miss.1975); King v. State, 315 So.2d 925 (Miss.1975); Null v. State, 311 So.2d 654 (Miss.1975); Minor v. State, 302 So.2d 248 (Miss.1974); Bragg v. State, 210 So.2d 652 (Miss.1968).

There being no reversible error in the record, the case must be and is affirmed.

AFFIRMED.

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

APPENDIX I

“D. INSTRUCTION NO. 10

The Court instructs the jury that the defendant had a perfect right to keep a pistol in her house where she was living, and she had a right to use said pistol and kill Ernest Hull, even though he was her husband, if it reasonably appeared to her as a reasonable woman at the time that the said Ernest Hull was undertaking to force an entrance into her house, with the design to do her some great personal injury.”

APPENDIX II

“D. INSTRUCTION NO. 6

The Court instructs the jury that if the deceased was a much larger and stronger man than the defendant, so much so that the defendant was absolutely incapable of coping with him in a physical combat, and was liable to receive serious and great bodily injuries at the hands of the deceased in the event that they became engaged in such combat, and if you believe that the defendant apprehended such combat then the defendant was justified in shooting the deceased or in using a deadly weapon to defend herself from the attack of the deceased, even though the deceased had been wholly unarmed, and the defendant was in no danger from the deceased, except such as might be inflicted by the deceased with his hands and feet.”


author: SUGG, Justice,

text:
    CITY OF JACKSON, Mississippi v. MISSISSIPPI STATE BUILDING COMMISSION and Frank J. Rooney, Inc.
    No. 50252.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    John E. Stone, W. T. Neely, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by P. L. Douglas, First Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

This appeal is from a final decree of the Chancery Court of the First Judicial District of Hinds Court which (1) enjoined the City of Jackson from requiring the State Building Commission or its contractor, Frank J. Rooney, Inc., to obtain a building permit from the City and to pay a permit fee for construction of a building by Rooney for the Commission, and (2) allowed the Commission to recover $13,454 paid into the registry of the court by it.

The Commission filed a bill of complaint and alleged that the City demanded that its contractor, Rooney, obtain a building permit and pay a building permit fee of $13,-454; that it withheld payment of $13,454 to Rooney but tendered that amount into the registry of the chancery court.

The Commission further alleged that it is an agency of the state created pursuant to section 31-11-1 et seq., Mississippi Code Annotated (1972) and was authorized to construct a building for the school of dentistry for the University of Mississippi Medical Center in the City of Jackson. The Commission prayed that the City be enjoined from requiring its contractor to obtain a building permit for the construction of its building and pay a fee therefor.

The City answered and admitted that the Commission was authorized to construct the building; that the defendant Rooney was awarded a contract to construct the building; and, that it had sought to require Rooney to obtain a building permit for the construction and pay a fee of $13,454 for the issuance of the permit.

The City made its answer a cross-bill and alleged that it adopted a building code as authorized by section 21-19-5 Mississippi Code Annotated (1972). The City further alleged that the purpose of the building code was:

[T]o provide minimum requirements to safeguard the lives, health and general welfare of the citizens of the City and to protect property within the applicable jurisdiction by securing structural strength, stability, sanitation, adequate light and ventilation and safety to life and property from fire and other hazards incident to the construction, alteration, use and occupancy of buildings and structures.

The City further alleged that its building code requires every contractor proposing to erect or construct a building within its jurisdiction, (1) to make application to the Director of its Building and Permit Department for the issuance of a separate building permit for each structure, (2) to submit copies of the plans and specifications for the proposed work, (3) to obtain the department’s approval thereof, and (4) to pay a prescribed fee before commencing construction. It alleged that Rooney began construction in violation of the provisions of the building code and prayed that it be awarded $13,454 for the permit fee.

In its final decree the court issued an injunction enjoining the City from enforcing its building code against the State and ordered the clerk to refund to the Commission the $13,454 paid into the registry of the court by it.

The issue in this case is: Does the building code of a municipality requiring a building permit and prescribing a fee for the building permit apply to buildings to be erected for the State by the State Building Commission?

It is well settled by our decisions that statutes in derogation of sovereignty should be strictly construed in favor of the State so that its sovereignty may be upheld, and not narrowed or destroyed except by specific provisions. In Coleman v. Whipple, 191 Miss. 287, 2 So.2d 566 (1941) this Court stated:

By resorting merely to well-known principles of statutory construction, it is evident that the State may not be restricted in its sovereignty except by the specific provisions of its statutes. Josselyn v. Stone et al., 28 Miss. 753; Turner v. City of Hattiesburg, 98 Miss. 337, 53 So. 681; Feemster v. City of Tupelo, 121 Miss. 733, 83 So. 804; State Teachers’ College v. Morris, 165 Miss. 758, 144 So. 374; Sedgwick, Construction of Statutory and Constitutional Law (1874 Ed.), p. 337.
In Josselyn v. Stone, supra, the Court said: ‘It is the settled doctrine that the general words of a statute do not include the State, or affect her rights, unless she be specially named, or it be clear and indisputable from the act that it was intended to include the State.’ It was further held in City of Jackson v. State, 156 Miss. 306, 126 So. 2, 4: ‘It is undoubtedly the general rule that, where the effect of a statute is to restrict the rights of, or impose liabilities upon, the state or its political subdivisions, it will be held to be inapplicable to them, unless they are included expressly or by necessary implication.’ See also 59 C.J. 1103, Sec. 653. (191 Miss, at 298, 299; 2 So.2d at 568).

We held in Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co., 172 Miss. 630, 158 So. 778 (1935) the following:

In 59 C.J., section 663, it is said: ‘Statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed, and should not be permitted to divest the state or its government of any of its prerogatives, rights or remedies, unless the intention of the Legislature to effect this object is clearly expressed.’ (172 Miss, at 648, 158 So. at 782).

In Potter v. Fidelity & Deposit Co., 101 Miss. 823, 58 So. 713 (1911) we said:

When the state’s sovereignty is involved in any statute, statutes in derogation thereof are to be strictly construed in favor of the state; that is to say, the state’s sovereignty is to be broadened and upheld, and not narrowed or destroyed, when the courts are called upon to construe a statute infringing upon sovereign power. (101 Miss, at 827, 58 So. at 715).

The City adopted a building code pursuant to the authority granted by section 21-19-25 Mississippi Code Annotated (1972) which reads in part as follows:

Any municipality within the State of Mississippi may, in the discretion of its governing authorities, adopt building codes, plumbing codes, electrical codes, gas codes, sanitary codes, or any other codes dealing with general public health, safety or welfare, or a combination of the same, by ordinance, in the manner herein prescribed.

The language of section 21-19-25 does not expressly, or by implication, subject buildings erected by the State to building codes enacted pursuant thereto, neither does it give municipal corporations the power to require the State to obtain and pay a fee for a building permit. To the contrary section 31-11-3 Mississippi Code Annotated (1972) expressly grants the State Building Commission authority to erect state buildings, make inspections, prepare plans and specifications, and supervise the erection of state buildings. It is not reasonable to assume that the legislature, by enacting section 21-19-25, intended to diminish the authority of the Commission contained in section 31-11-3 and give municipalities the power to narrow or destroy the state’s sovereignty with respect to its own buildings. Section 31-11-3 reads in part as follows:

The commission, for the purpose of carrying out the provisions of this chapter, in addition to all other rights and powers granted by law, shall have full power and authority to employ and compensate such architects or other employees necessary for the purpose of making inspections, preparing plans and specifications, supervising the erection of any buildings, and making any repairs or additions as may be determined by the commission to be necessary. Said commission shall have entire control and supervision of, and determine what, if any, buildings, additions, repairs or improvements are to be made under the provisions of this chapter.
(a) The commission shall have full power to erect buildings, make repairs, additions or improvements, and buy materials, supplies and equipment for any of the institutions or departments of the state. In addition to other powers conferred, the commission shall have full power and authority as and when directed by the legislature, or when funds have been appropriated for its use for such purposes, to:
(2) Build suitable plants or buildings for the use and housing of any state schools or institutions, including the building of plants or buildings for new state schools or institutions, as provided for by the legislature; •

The foregoing statute delegates plenary power to the Commission to construct state buildings. Such grant of specific power denies contrary power. If the legislature had intended the Commission or its contractors to submit plans and specifications for the construction of buildings and pay fees to municipalities for building permits, then such requirement would have been expressly stated therein. The building code of the City must therefore yield to the sovereignty of the State.

Our holding on this question is in accord with authority in other jurisdictions. City of Milwaukee v. McGregor, 140 Wis. 35, 121 N.W. 642 (1909) and Paulus v. City of St Louis, Mo.App., 446 S.W.2d 144 (1969) decided the identical issues present in our case. The issue before the Supreme Court of Wisconsin in City of Milwaukee v. McGregor was whether the provisions of the charter of the City of Milwaukee and ordinances regulating the construction of buildings in Wisconsin applied to a public school building to be erected for the state by virtue of special legislative authority. The Supreme Court of Wisconsin stated:

So the question comes down to whether the ordinary charter and ordinance regulations of a city requiring submission to local supervision, as regards the manner of constructing, altering and repairing buildings, have any application to state buildings. That must be answered in the negative. It is plainly so ruled by the familiar principle that statutes, in general terms, do not apply to acts of the state. Moreover, express authority to a state agency to do a particular thing in a particular way supersedes any local or general regulation conflicting therewith. Sandberg v. State, 113 Wis. 578, 89 N.W. 504; Dollar Savings Bank v. United States, [19 Wall. 227-239] 86 U.S. 227-239, 22 L.Ed. 80; United States v. Verdier, 164 U.S. 213-219, 17 S.Ct. 42, 41 L.Ed. 407; District of Columbia v. Johnson, 165 U.S. 330, 17 S.Ct. 362, 41 L.Ed. 734.
The infirmity of appellant’s position has been, from the first, in supposing that the state, in respect to constructing a building in the city of Milwaukee, has no more free hand than a private person or corporation, while the fact is that the people of the state in their sovereign capacity, except as restrained by some constitutional limitation, and there is none in this case, is as exempt from mere general or local laws as the king was of old in the exercise of his sovereign prerogatives as ‘universal trustee’ for his people. So it has been said, ‘The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not’ the sovereign ‘in the least, if they may tend to restrain or diminish any of his rights and interests.’ So general prohibitions, either express or implied, apply to all private parties but ‘are not rules for the conduct of the state.’ (140 Wis. at 37, 121 N.W. at 642, 643).

One of the issues in Paulus, supra, was whether the City of St. Louis could collect a building permit fee from a contractor who was constructing a building for the State of Missouri. The Court stated:

The issues herein distill into the question of whether the State has by legislation or by its contract with plaintiff empowered the City to impose the permit fee on plaintiff. We first inquire whether legislation thus empowered the City. On this, we turn to the well-established principle that an ordinance does not apply to a state with reference to its own property unless the charter expressly gives the city authority to bind the state or the state waives its right to regulate its property. See: McGregor, supra, 121 N.W. 1. c. 643; New Jersey Interstate Bridge and Tunnel Comm. v. Jersey City, 93 N.J.Eq. 550, 118 A. 264, 266-267 (city may not compel state or its general contractor to take out a permit); City of Medford v. Marinucci Bros. & Co., Inc., 344 Mass. 50, 181 N.E.2d 584, 587; Township of Springfield v. New Jersey State Highway Dept., 91 N.J.Super. 567, 221 A.2d 766, 775; Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.2d 777, 781; Kentucky Institution, etc. v. City of Louisville, 123 Ky. 767, 97 S.W. 402, 403-404; City of Atlanta v. State, 181 Ga. 346, 182 S.E. 184, 185; Ex parte Means, 14 Cal.2d 254, 93 P.2d 105, 107; Board of Regents, etc. v. City of Tempe, 88 Ariz. 299, 356 P.2d 399, 406; Watson Const. Co. v. City of St. Paul, supra [260 Minn. 166, 109 N.W.2d 332]. The state and its agencies are not within the purview of a statute unless an intention to include them is clearly manifested, especially where prerogatives, rights, titles, or interests of the state would be divested or diminished or liabilities imposed on it. Hayes v. City of Kansas City, 362 Mo. 368, 241 S.W.2d 888, 892.
It is not reasonable to assume that the legislature intended to grant or delegate to the City the power and authority to override the State’s sovereign prerogative. See Harmon, supra. To permit the City to graft its own building code onto such legislative requirements would introduce a potential element of discord and confusion .into an area where the public interest of all the people of the State is so directly and importantly involved. Kaveny v. Bd., etc., of Montclair, 71 N.J.Super. 244, 176 A.2d 802, 804.
Central authorities such as the Department and the Chief, responsible to state officials rather than to officials of each municipality, are appropriate for the efficient, uniform, and orderly administration of the State’s system of planning and erecting state buildings responsible to the needs of all of the people of the State. City of Tempe, supra, 356 P.2d 1. c. 407; Kaveny, supra, 176 A.2d 1. c. 803.
They will, without any local control, plan for and supervise the construction of state buildings with no less concern for the soundness and safety of the building than the local municipality. They may follow desirable local building specifications, without requiring that the contractor (and, therefore, the State indirectly) pay a substantial building permit charge to the City. (446 S.W.2d at 150,151,152, 153).
For the reasons stated, we affirm.

AFFIRMED.

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

      . Miss.Gen.Laws Ch. 388 (1973) directed and authorized the board of trustees of state institutions of higher learning to establish a school of dentistry at Mississippi Medical Center in Jackson and directed and authorized the State Building Commission to provide suitable state owned land or land acquired by gift and buildings to house the school of dentistry.
      Miss.Gen.Laws Ch. 266 § 7(s) (1974) appropriated $8,313,233 for construction of dental school.


author: SMITH, Presiding Justice,

text:
    J. C. PITTMAN v. STATE of Mississippi.
    No. 49918.
    Supreme Court of Mississippi.
    Sept. 28, 1977.

      Moore, Epps & Selph, Deborah Selph, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

Appellant, J. C. Pittman, was indicted for burglary with two others, Kenneth Harrison and Roger Capíes. Harrison entered a plea of guilty and testified for the State against Pittman at Pittman’s trial in the Circuit Court of Tunica County. Pittman was convicted and sentenced to six years imprisonment. He appeals, assigning three grounds for reversal.

It is appellant’s position on appeal that he was denied due process of law as required by the United States Constitution because, it is alleged, the prosecution was allowed “to suppress evidence effecting the credibility of the State’s key witness.” Appellant’s argument is predicated upon the case of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

The case against appellant Pittman was substantially as follows:

Pittman, Harrison and Capíes drove in Pittman’s truck to the storage sheds of one William Houston where certain “chemicals” were stored. Pittman and Capíes got out of the truck and Harrison drove away, with the purpose of returning in twenty minutes to pick them up with a quantity of chemicals to be stolen from the warehouse. This arrangement was carried out and chemicals with a value of $700, stolen from the warehouse, were put in Pittman’s truck. Later that night Harrison was apprehended by the sheriff of Coahoma County driving Pittman’s truck with the chemicals aboard. At the time, Pittman and Capíes were not in the truck.

Upon Pittman’s trial, the evidence established that the truck belonged to Pittman, and the sheriff testified that he had apprehended Harrison driving it on the night of the burglary with the stolen chemicals aboard. Pittman’s activities in connection with the crime, other than the circumstance that his truck was used, appear from the testimony of his coindictee Harrison. At the time of Pittman’s trial, Harrison had already entered a plea of guilty to the charge but had not been sentenced. Pittman did not testify and offered no evidence.

When Harrison, alleged accomplice of Pittman, was on the stand, the fact that he had entered a plea of guilty but had not been sentenced was disclosed. He was cross-examined at some length as to possible promises or inducements which might have been made or held out to him by the State as a reward for his testimony against Pittman. He steadfastly maintained that there had been “absolutely none” and said “no sir” at least twice when asked if any such inducements or promises had been offered or made and finally said “I tried not to plead guilty, but I got tired of lying and decided I would tell the truth.”

Pittman’s contention that the State suppressed impeaching evidence as to Harrison is based upon a motion made by Pittman’s counsel to require disclosure of “information, any promises or statements made by any government official to Willie Dugan, Roger Capíes and/or Kenneth Harrison” (Pittman’s coindictees). All tangible evidence favorable to Pittman was duly turned over to defense counsel by the district attorney. Proceedings relevant to the present contention, as they appear in the record, were as follows:

MR. GINGER: (defense counsel) Your Honor, the other motion that I filed is a motion to disclose information. What I’m basically asking for is a written statement by the State of what recommendations, promises, statements, and so forth have been made to the co-defendants in this case and the fourth person who is a co-defendant in Clarksdale.
MR. GRAVES: (prosecuting attorney) Now, your Honor, we object to this. We don’t think we are required to do it. They have cited a case which we have read and which we make available to the Court, we want to be very forthright about this.
ARGUMENT (not reported)
THE COURT: The Court won’t accept any deals anyway. They are unacceptable to this Court. You heard me state that I wanted a pre-sentence report on him. No deals.
MR. GINGER: Your Honor, we understand no deals have been made in this.
THE COURT: The Court won’t accept them.
MR. GINGER: I’m not meaning to argue with either the Court or the State at all. I believe that under that case and several other cases the defendant Pittman, my client, is entitled to know what the State will recommend. I think the defendant is entitled to know.
THE COURT: I don’t accept State recommendations except in rare instances.
MR. GINGER: I understand, your Honor, that’s not—
THE COURT: I don’t think you are entitled to that. That’s getting beyond the scope of the defendant’s entitlement.

The present case is distinguishable from Giglio in several particulars which we consider controlling.

In Giglio, an accomplice, one Taliento, was the Government’s key witness. Talien-to had not been indicted. In Giglio, after the verdict, on the hearing of a motion for a new trial, it was established that Taliento had perjured himself in denying that he had been given any inducement to testify. The United States Supreme Court said:

Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.
(405 U.S. at 154, 92 S.Ct. at 766, 31 L.Ed.2d at 109).

Moreover, in Giglio, Taliento was vigorously cross-examined by defense counsel in an effort to discredit his testimony by showing that inducements or agreements of prosecutorial leniency had been made. The witness testified that there had been none. This was false and after the verdict it was discovered that Taliento had been promised that he would not be prosecuted if he would testify against Giglio.

In the case now before this Court, there is nothing to show or to indicate that Harrison’s testimony against Pittman was false or that he had been induced to give it by promises of leniency by prosecuting officials or by any representative of the State.

The suggestion that improper inducements were made to Harrison to obtain his testimony or that his testimony was false, in the absence of anything in the record to indicate either, amounts to no more than speculation or conjecture. No evidence was offered either before or during the trial to indicate that any such promises had been made to Harrison or that the testimony he had given against Pittman, which was un-contradicted, had been false in any particular.

In the case under consideration here, there was no motion for a new trial upon any ground. Therefore, no “newly discovered evidence” (or any other kind) was produced to show that Harrison had received promises of leniency in return for his testimony, or that his statement on the stand that he had not was false, or that his uncon-tradicted testimony against Harrison had been untrue in any particular.

The decision in Giglio is sound but it has no application in this case.

Appellant also argues that his conviction should be reversed in that, he says, he was wrongfully denied a “cautionary” instruction to which he was entitled, dealing with the testimony of Harrison, his alleged accomplice.

Ordinarily, an accused is entitled to an instruction telling the jury that it should view the testimony of an accomplice with caution and even suspicion, particularly where the case against the accused rests in large part upon the uncorroborated testimony of such an accomplice.

In Dedeaux v. State, 125 Miss. 326, 87 So. 664 (1921) this language appears:

While a conviction may be had on the uncorroborated testimony of an accomplice, the courts of this state are committed to the doctrine that it is proper for the court to instruct the jury that the testimony of an accomplice is to be weighed with caution (White v. State, 52 Miss. 216; Fitzcox v. State, 52 Miss. 923; Green State, 55 Miss. 454; Cheatham v. State, 67 Miss. 335, 7 So. 204, 19 Am.St. Rep. 310; Wilson v. State, 71 Miss. 880, 16 So. 304; Osborne v. State, 99 Miss. 410, 55 So. 52), and upon a new trial some cautionary instruction should be granted. We do not hold, however, that an instruction in the precise language of the one requested should be given, but, if the jury is duly cautioned, the requirements of this rule are satisfied. In Wilson v. State, supra, this matter is fully discussed, and Chief Justice Campbell there used language, which we quote to approve as announcing the correct view, the language there used being as follows:
“The Court was not bound to pile up words suggestive of a desire for the jury to dismiss as unworthy of consideration the testimony of the accomplice. Having cautioned the jury as to the suspicious source of such testimony, it was proper to leave the jury to deal with it according to its effects on the minds of the jurors, who are not likely to accept too readily such testimony. The rule is for the presiding judge to inform the jury that the testimony of an accomplice is to be received and considered with caution, as from a polluted and suspicious source, but it must, in large measure, be left to the judge to choose the language in which this caution shall be given. There is no uniform rule. Cases vary with circumstances. In some eases stronger words of caution might be more appropriate than in others.”
(125 Miss, at 335, 87 So. at 665).

There were in the present case circumstances tending to corroborate Harrison in that (1) Harrison did in fact have Pittman’s truck on the night of the burglary and (2) the stolen goods were found in it. Moreover, the testimony of Harrison, the accomplice, is uncontradicted and his possession of the truck under the circumstances of the case remains unexplained by Pittman. The trial court declined to give the instruction requested by Pittman upon objection by the State that it had not been submitted 24 hours in advance as required by Rule 14 of the Uniform Rules of the Circuit Courts of Mississippi. Pittman’s counsel explained to the court that he had not known “for certain” in advance of trial that Harrison, the accomplice, would testify and therefore an instruction had not been prepared and submitted earlier.

Notwithstanding the lateness of filing and the dubiety of the excuse offered, we have examined and considered the instruction in question. We find that this very lengthy instruction proffered by the defense suffers from two fatal defects. First, it is highly argumentative. Its language is more appropriate to counsel’s argument to a jury than to an instruction emanating from a trial judge. Furthermore, it would allow the jury to assume, in passing upon the testimony of the accomplice, facts not supported by any evidence. As stated by Chief Justice Campbell in Wilson, supra, “The Court was not bound to pile up words suggestive of a desire for the jury to dismiss, as unworthy of consideration, the testimony of an accomplice.” The proffered instruction should not have been given in any case and the trial court’s refusal to give it was not error.

Finally, it is argued that the conviction should be reversed because the State requested and the trial court granted an instruction defining the term “reasonable doubt” in which the jurors were told that beyond a reasonable doubt did not mean beyond all possible doubt but meant a doubt based on reason and common sense.

This instruction should not have been given. This Court has held in a number of cases that the term “reasonable doubt” is self-defining and that the word “reasonable” sufficiently modifies and restricts the word “doubt”. We find, however, in considering the effect of the instruction in this case, that the defense requested and was granted instructions on the subject of reasonable doubt which suffer from a similar fault. In fact, defense instruction Number 3, which it is unnecessary to quote at length, goes further than the instruction complained of which was granted at the request of the State. The Court instructed the jury at the instance of the appellant that before it could convict appellant the evidence must have established appellant’s guilt beyond a reasonable doubt and to a moral certainty. Instruction Number 3 went on to say to the jury that “a reasonable doubt is a fair doubt, based upon reason and common sense.” And further, “It is such a doubt as you would be willing to rely and act upon in the most important of your own affairs.” We repeat, an instruction attempting to define the words “reasonable doubt” should not be given, either for the prosecution or defense. It appears here that both sides obtained instructions on the subject which, in some degree at least, exceeded what they were entitled to and were more generous than correct. Under these circumstances we are unable to say that the giving of the instruction complained of was so prejudicial that the conviction must be reversed on account of it. We have concluded that all of the instructions read together contained a reasonably accurate statement of the law of the case.

The evidence having been more than ample to support the jury’s verdict and no reversible error having been demonstrated, the conviction and sentence will, therefore, be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    STATE of Alabama, ex rel. Charles A. BOSWELL, Commissioner of Revenue v. CITY OF MONTGOMERY, Alabama, a Municipal Corporation.
    Civ. 1139.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1977.
    William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Counsel, Dept, of Revenue and Asst. Atty. Gen., and Philip C. Davis, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    Randall C. Morgan, Montgomery, for ap-pellee.

      . Code of Alabama 1940 (Recomp.1958) (Supp. 1973), Title 47, §§ 322, 326.

   BRADLEY, Judge.

This appeal results from a suit brought in the Circuit Court of Montgomery County by appellant, the State of Alabama, on behalf of the Alabama Commissioner of Revenue. The purpose of the suit was to compel delivery to the State of certain unclaimed funds held by appellee, the City of Montgomery, pursuant to the Uniform Disposition of Unclaimed Property Act.

The trial court, after a hearing ore terms and the receipt of briefs on the matter from the opposing parties, held that appellant’s claim to the funds was barred by the statute of limitations.

The sole issue on appeal is whether or not • the statute of limitations operates as a bar to any or all the funds in question.

This case arose from the following facts. In 1971 the City of Montgomery requested that its paying agent, Hanover Trust Company of New York, turn over certain funds which Hanover held on old City bond issues. The City received this money in January of 1973 and thereafter filed a report concerning these funds with the Alabama Department of Revenue.

The report provided by the City of Montgomery showed that the money received from Hanover Trust Company was “unclaimed.” The Uniform Disposition of Unclaimed Property Act requires that property which is unclaimed for seven years be presumed abandoned and turned over to the Department of Revenue by the holder of the property. Pursuant,to this Act, the Commissioner of Revenue sought to have the City of Montgomery deliver the money in question to the Department of Revenue. The City failed to deliver the funds to the Commissioner and suit was brought to obtain them by the State of Alabama.

The funds involved in the present case were the result of principal from City bond issues as well as interest on coupons detached from those bonds. Originally the amount of unclaimed property was $33,-134.72. However, only $7,959.79 is at issue on this appeal. This money was contained in five separate bank accounts. These five accounts are set out in the following chart:

1.

2.

3.

4.

5.

Total

account number

P-5056

P-4668

P-4447

P-4848

Capitol Heights

type of bonds

serial and term

term and coupon

term

term

improvement

amount

$1,230.00

$2,050.00

$ 125.00

$ 325.00

$4,229.79

$7,959.79

date of bond’s maturity

1 Jan. 1966

1 May 1965

1 Apr. 1967

1 Dec. 1965

v

The dispute with regard to the money in the aforementioned accounts may be summarized in the following manner. A provision in the Uniform Disposition of Unclaimed Property Act provides that periods of limitations shall not bar the applicability of the Act. However, the Unclaimed Property Act applies only to claims on which the relevant statute of limitations has not run prior to the effective date of the Act. Boswell v. South Central Bell Telephone Co., 293 Ala. 189, 301 So.2d 65 (1974). The effective date of the Act was April 27, 1971.

Appellant urges that the bonds and coupons on which the bank accounts are based are under seal (or should be treated as such) and a ten year statute of limitations, beginning from date of maturity, should be applied to actions to obtain the funds from these instruments.

Since appellant’s suit arises under the Unclaimed Property Act, it would be necessary for the bonds and the coupons therefrom to have matured ten years prior to the effective date of the Act in order to be barred by the statute of limitations. This would mean that any claim arising after April 27, 1961 could be based on the Unclaimed Property Act. In the instant case, appellant contends that none of the bonds matured until after April 27, 1961 and thus the funds derived from them were abandoned property and rightfully belonged to the State.

On the other hand, appellee asserts that different statutes of limitation apply to the bonds and their respective coupons. Appel-lee agrees with appellant that the relevant statute of limitations for bonds is ten years. However, appellee argues that a six year period for limitation of actions is applicable with regard to the coupons. Such limitation period would bar any suit under the Unclaimed Property Act which was brought to recover money on bond coupons unless such suit was initiated after April 27, 1965.

The trial court accepted appellee’s contentions and held that appellant was barred by the statute of limitations from bringing its suit under the Unclaimed Property Act.

In the absence of specific statutes relating to actions on bonds, such actions are governed by the statute applicable to other sealed instruments and specialties. 53 C.J.S. Limitations of Actions § 55. See City of Kenosha v. Lamson, 76 U.S. 477 (9 Wall.), 19 L.Ed. 725. Where bonds represent the general fund indebtedness of a municipal corporation the applicable statute of limitations begins to run at the maturity of the obligation. Irvine v. Bossen, 25 Cal.2d 652, 155 P.2d 9; Littlefield v. Shreveport, 148 La. 693, 87 So. 714.

Moreover, the overwhelming weight of authority recognizes that interest coupons annexed to the bonds under seal are considered specialties within the statute of limitations governing bonds, even after the coupons have been detached from the bonds. City of Kenosha v. Lamson, supra; Town of Koshkonong v. Burton, 104 U.S. 668, 26 L.Ed. 886; Panama City v. Free, Fla., 52 So.2d 133. The rationale of this view is based on the fact that coupons, representing interest to become due on the bonds, are thus a part of the bonds. The statute of limitations for bonds begins to run against each coupon from the date it matures or is payable. Town of Koshkonong v. Burton, supra; Amy v. City of Dubuque, 98 U.S. 470, 25 L.Ed. 228.

In Alabama actions founded upon sealed instruments must be commenced within ten years. Title 7, Section 20, Code of Alabama 1940 (Recomp.1958). The relevant statute of limitations in the instant case was ten years. The State’s claims to abandoned funds arising from either bonds or coupons (attached or unattached) which matured after April 27, 1961 would not be precluded by the statute of limitations. Therefore the application of the ten year statute of limitations must be viewed in the context of each account upon which this appeal is based to ascertain the validity of the trial court’s ruling.

The first account, P-5056, contained the sum of $1,230.00. This account held some serial bonds and some term bonds. Inadequate records prevented the City’s comptroller from determining from which of these type bonds the funds resulted. Nor could she determine if the money arose from interest or principal. The latest possible maturity date on these bonds was January 1, 1966. However, the comptroller testified that the bonds or coupons therefrom could have matured on any date between January 1945 and January 1966. The City’s attorney further explained to the trial court that serial bonds often mature before their given date and that many of the bonds in P-5056 were serial bonds.

On the basis of this testimony and bank records which indicated that the account had held a constant balance of $1,230.00 since 1963, the court concluded that the statute of limitations barred the appellant from its claim to this sum.

Since the findings and conclusions of the trial court are presumed correct unless plainly in error, it cannot be said that the court erred with regard to account P-5056. Indeed, its finding that the $1,230.00 resulted from instruments maturing prior to April 27, 1961 is entitled to a favorable presumption in view of the testimony and bank records presented at trial. Nor did appellant offer proof at trial which would refute such a finding.

The second account, P-4668, involved the sum of $2,050.00. This account held two $1,000 bonds with the last coupon on each still attached. Both the bonds and their coupons were outstanding. At trial, the city comptroller testified on both direct and cross-examination that the $2,050.00 in this account resulted from the two outstanding bonds and the interest on the coupons from these bonds. However, on re-direct she testified that the entire amount found in P-4668 was derived from coupons maturing prior to 1961. The State of Alabama offered no evidence to contradict the comptroller’s testimony with regard to this account.

Based on the testimony given by the city comptroller on re-direct, the trial court found that the State’s claim to the money contained in P-4668 was barred by the statute of limitations. This finding was not in error.

It is an established principle that on appeal this court does not weigh the evidence to determine if it reasonably satisfies the issue in question. Gunnels v. Jimmerson, Ala., 331 So.2d 247. Instead, this court will indulge in all favorable presumptions to sustain the trial court’s conclusion unless that conclusion is plainly erroneous or manifestly unjust. Gunnels v. Jimmerson, supra. In view of this principle and the testimony which was given at trial, it cannot be said that the trial court erred with regard to account P-4668.

The third account is P-4447. The funds in this account amounted to $125.00. The latest possible maturity dates on the bonds in this account were from April 1, 1964 to April 1, 1967. In 1974 the City actually paid $7,000 to redeem coupons on those bonds which matured in 1967. The city comptroller stated that she had no records which would indicate whether the $125.00 remaining in this third account was attributable to bonds or coupons. Nor was there any testimony at trial as to when the $125.00 became a part of P-4447. On the basis of this testimony the trial court held that the funds in P-4447 belonged to the City.

This holding was in error. The City of Montgomery pleaded the affirmative defense of the statute of limitations, thus it was the City’s burden to prove that the $125.00 in P-4447 was derived from instruments maturing prior to April 27, 1961. The City, however, produced no evidence in support of its defense. In fact, the city comptroller stated that she could determine neither the source nor the date of the fund’s existence. There Was no other evidence that a claim to the $125.00 under the Unclaimed Property Act was barred by the applicable period for limitations of actions. Thus, the trial court’s determination that the State’s claim to this money was barred by the statute of limitations was plainly in error. The State of Alabama is entitled to the entire $125.00 contained in P-4447.

The trial court also erred in its disposition of the funds in the fourth account. This account, P-4848, contained $325.00. The bond on which this fund was based matured on December 1, 1965. Bank statements from 1963 to the date of trial demonstrated a continuing balance of $325.00 in P-4848. No bank statements prior to 1963 were found. This evidence was all that was presented with respect to this account. Nevertheless, the trial court found that this $325.00 belonged to the City of Montgomery.

Although the findings of the trial court are presumed correct, this presumption fails where there is no evidence presented at trial which would support the trial court’s conclusions. As with the third account, the City failed to offer evidence in support of its affirmative defense of the statute of limitations. Since there was no evidence that P-4848 contained $325.00 prior to April 27,1961, the trial court was plainly in error in holding that this sum belonged to the City of Montgomery. The $325.00' contained in P-4848 properly belonged to the State of Alabama.

The fifth and last account is the Capitol Heights account. It contained $4,229.72 resulting from bonds dated May 1, 1925, May 1, 1926, and November 1, 1926. Although no maturity date was stated, the city comptroller testified that these bonds were improvement bonds which matured ten years after their issuance. Furthermore, a bond could not be outstanding for a period in excess of thirty years. Section 2269, Code of Alabama 1923. Thus, the very latest maturity date on these bonds would be 1956. Consequently, the State’s claim to the funds in the Capitol Heights account was barred by the statute of limitations. The trial court correctly held that the entire $4,229.72 belonged to the City of Montgom- ■ ery.

The trial court properly concluded that the money found in accounts P-5056, P-4668 and the Capitol Heights account belonged to the City of Montgomery. The City is entitled to this money in the sum of $7,509.72.

However, the trial court erred with respect to the funds contained in accounts P-4447 and P — 4848. The State’s claim with respect to these accounts was not barred by the statute of limitations. The State of Alabama is entitled to receive the sum of $450.00 from the City of Montgomery under the Unclaimed Property Act.

That part of the trial court’s decree which awarded the money in the Capitol Heights account and the accounts numbered P-5056 and P-4668 to the City of Montgomery is affirmed, and that part of the decree which awarded the money in accounts numbered P-4447 and P-4848 to the City of Montgomery is reversed. The cause is remanded to the trial court for a decree to be entered awarding the money in accounts numbered P-4447 and P-4848 to the State of Alabama, Department of Revenue.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

WRIGHT, P. J., and HOLMES, J., concur.

      . Originally the amount in dispute on this account was $12,225.00. However, the comptroller for the City of Montgomery testified that her bond directory indicated that $10,175.00 of this money was interest due prior to 1947 thus leaving only $2,050.00 still in dispute.

      . Although the State originally sought the entire $15,125.00 listed in this account, subsequent City records demonstrated that $15,000 was claimed in 1974. Only $125.00 of this account remains in dispute.

      .Title 47, Section 329, Code of Alabama 1940 (Recomp.1958) (Supp.1973) provides:
      “The expiration of any period of time specified by statute or court order, during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or recovery of property, shall not prevent the money or property from being presumed abandoned property, nor affect any duty to file a report required by this chapter or to pay or deliver abandoned property to the commissioner of revenue.”

      . Appellant also asserts that the statute of limitations upon a suit to establish a resulting trust does not begin to run so long as there is a recognition of the trust by the trustee. Thus, appellant contends that by recognizing the rights of the persons whose property it holds the City has prevented the relevant statute of limitations from beginning to run.
      The doctrine upon which appellant attempts to rely has been applied in cases of purchase money resulting trusts. See Henslee v. Merritt, 263 Ala. 266, 82 So.2d 212 (1955); Sykes v. Sykes, 262 Ala. 277, 78 So.2d 273 (1954). It is not applicable here. The relevant statute of limitations in the instant case was ten years from the date of the bond’s (or coupon’s) maturity.


author: ENGLAND, Justice. ADKINS, J.,

text:
    Claude Lowell ROBERTS and State Farm Fire and Casualty Company, Petitioners, v. Glenn C. CARTER and Martha D. Carter, his wife, Respondents.
    No. 48016.
    Supreme Court of Florida.
    Sept. 15, 1977.
    Janis M. Halker of Gurney, Gurney & Handley, Orlando, for petitioners.
    Charles A. Tabscott of Troutman & Parrish, Winter Park, for respondents.
   ENGLAND, Justice.

Claude Roberts and the carrier of his homeowners’ insurance policy, State Farm Fire and Casualty Co., have asked us to review the rejection of their defense of assumption of risk in a personal injury lawsuit, and an award of attorney’s fees against State Farm for its denial of coverage. We granted certiorari to resolve deci-sional conflicts among Florida appellate decisions on these points. The first point was recently resolved against Roberts and State Farm by our decision in Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977). We, therefore, limit our discussion to the attorney’s fees question.

In a decision reported at 316 So.2d 640, the Fourth District Court of Appeal held that Roberts’ insurer must pay the injured plaintiffs’ attorney’s fees because, in plaintiffs’ suit against Roberts and State Farm, the company denied coverage and ultimately was held responsible. Several appellate decisions have considered the same or related questions under Section 627.428(1), Fla. Statutes (1975), which authorizes attorney’s fees against insurers in certain circumstances. The statute provides:

“Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recover is had.” (Emphasis added).

The narrow question presented here is whether or to what extent persons other than “an insured or the named beneficiary under a policy” may recover attorney’s fees in their stead.

The fundamental rule in Florida has been that an “award of attorneys’ fees is in derogation of the common law and that statutes allowing for the award of such fees should be strictly construed”. Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34, 37 (Fla. 1975). The decisional law has generally been consistent in applying this principle, holding that attorney’s fees are allowable under the statute only when the narrow statutory class — the insured or a named beneficiary — is required to litigate a valid claim against an insurer. Wilder v. Wright, 278 So.2d 1 (Fla. 1973); Daleo v. Travelers Indemnity Co., 282 So.2d 169 (Fla. 1973). Recovery of fees has generally been denied when other persons have litigated the issue of insurance coverage on their own behalf, such as in the injured “third party beneficiary” cases made possible by Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969).

“The purpose of the statute is to discourage contesting of valid claims of insureds against insurance companies and to reimburse successful insureds reasonably for their outlays for attorney’s fees when they are compelled to defend or to sue to enforce their contracts

' This case is factually identical to Wilder and Daleo in all material respects. The district court erred in allowing attorney’s fees, and its reliance on Queen v. Travelers Insurance Co., 258 So.2d 35 (Fla. 3d DCA), cert. denied, 263 So.2d 829 (Fla. 1972), was misplaced. The rationale of Queen, in any event, has been rejected by our decisions in Wilder and Daleo, as was noted in Phoenix Insurance Co. v. Helton, 298 So.2d 177 (Fla. 1st DCA 1974), cert. discharged, 330 So.2d 724 (Fla. 1976).

To eliminate any remaining confusion, we now reaffirm Wilder and hold that an award of attorney’s fees under Section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.

The decision of the Fourth District Court of Appeal as to attorney’s fees is quashed and the case is remanded for disposition in accordance with this opinion.

It is so ordered.

OVERTON, C. J., and SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J.,

dissents.

      . Art. V, § 3(b)(3), Fla.Const.

      . Other alleged trial errors raised by appellants were fully considered on appeal by the district court and do not warrant re-evaluation here.

      . See also Manufacturers Life Ins. Co. v. Cave, 295 So.2d 103 (Fla. 1974), holding that attorney’s fees are not allowable where the insurer does not deny liability and has been sued by a named beneficiary before it has had a reasonable opportunity to determine the validity of the named beneficiary’s claim.

      . See Central Nat’l Ins. Co. v. Gonzalez, 295 So.2d 694 (Fla. 3d DCA 1974). We disapprove, however, that portion of the decision which affirmed an award of attorney’s fees on the ground that coverage was an issue. See n.6 below.

      . Wilder v. Wright, 269 So.2d 434, 436 (Fla. 2d DCA 1972), quoted with approval on affirmance, 278 So.2d at 3.

      . Fees would be available, of course, whether the contracting insured brings or is required to defend a lawsuit with the insurance carrier. See Old Republic Ins. Co. v. Monsees, 188 So.2d 893 (Fla. 4th DCA 1966). James Furniture Mfg. Co. v. Maryland Cas. Co., 114 So.2d 722 (Fla. 3d DCA 1959), suggests the type of suit which an insured might be required to defend. The corporate insured in that case was allowed to recover attorney’s fees in a declaration suit brought by the carrier against its insured to contest coverage. The full decision in that case, however, is no longer good law. The decision was geared to an award for policy “beneficiaries”, since the attorney’s fee statute then in existence did not extend coverage to an “insured”. To the extent that James Furniture construes “beneficiary” to encompass an award to an injured tort claimant or an employee of the contracting insured, the decision is disapproved. Similarly, we disapprove Johnson v. Atlantic Nat’l Ins. Co., 163 So.2d 340 (Fla. 3d DCA 1964), cert. denied, 188 So.2d 314 (Fla. 1966), which applied James Furniture to sustain a fees award for an injured tort claimant on the theory that the claimant was a policy “beneficiary”. Aetna Cas. & Sur. Co. v. Mills, 192 So.2d 59 (Fla. 3d DCA 1966), illustrates a situation where the current statute would authorize attorney’s fees, despite the reliance there on the James Furniture and Johnson decisions. See also Dawson v. Aetna Cas. & Sur. Co., 233 So.2d 860 (Fla. 3d DCA 1970).

      .See, for example, All Ways Reliable Bldg. Maintenance, Inc. v. Moore, 261 So.2d 131 (Fla. 1972); Travelers Ins. Co. v. Tallahassee Bank & Trust Co., 133 So.2d 463 (Fla. 1st DCA 1961), cert. denied, 138 So.2d 332 (Fla. 1962).


author: HATCHETT, Justice. ADKINS, Justice,

text:
    Jiri BEREZOVSKY, Petitioner, v. STATE of Florida, Respondent.
    No. 50198.
    Supreme Court of Florida.
    Sept. 15, 1977.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., Miami, for respondent.
   HATCHETT, Justice.

We have for review an order of the Third District Court of Appeal reported at 335 So.2d 592 which allegedly conflicts with our decision in Roberts v. State, 335 So.2d 285 (Fla.1976). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner was tried and convicted on a charge of rape and was sentenced to thirty years in the state penitentiary. Petitioner urges reversal on the grounds that the trial judge failed to exercise his judicial discretion in sentencing by failing to consider possible sentencing alternatives provided for in Section 948.01, Florida Statutes (1975). Section 948.01, Florida Statutes, provides in pertinent part as follows:

Any court of the state having original jurisdiction of criminal actions, where the defendant in a criminal case has been found guilty . . . except for an offense punishable by death, may . either with or without an adjudication of the guilt of the defendant, hear and determine the question of the probation of such defendant.

It is petitioner’s position that the trial judge determined that Section 775.-082(3)(a), Florida Statutes (1975), requires a mandatory minimum sentence of thirty years and that the sentencing alternatives outlined in Section 948.01, Florida Statutes, are inapplicable. We have carefully reviewed the record and find it sufficient to show that the judge was unclear as to whether probation was possible under the circumstances of the case.

In Roberts v. State, 335 So.2d 285 (Fla. 1976), we specifically held that probation is an alternative open to the sentencing judge. We there, at 289, said:

It is sufficient to note that Section 959.-115, Florida Statutes, expressly provides for sentencing alternatives applicable to the instant case. This section, along with the general probation statute, is controlling and so the 30-year prison term for rape established by Section 775.082(3)(a), Florida Statutes, is not a “mandatory minimum” sentence in the sense for which the State contends. If on retrial Roberts is found guilty — a subject about which we express no opinion — the trial court should consider the alternatives posed by Section 959.115 as well as the sentencing provisions of Section 775.-082(3)(a) in determining appellant’s future.
(footnotes omitted)

The trial judge, at the time of sentencing in this case, did not have the benefit of the Roberts decision.

The District Court has reviewed the sufficiency of the evidence in this case and found that the jury’s verdict is supported by the record. Having resolved the conflict of decisions which brought the case' to us, we see no reason to provide a full second review of the evidence.

Accordingly, the decision of the Third District Court of Appeal is affirmed in part and reversed in part with directions to remand to the trial court for resentencing consistent with the views expressed herein.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and KARL, JJ., concur.

ADKINS, J., concurs in part with an opinion.

ADKINS, Justice,

concurring in part.

I agree that probation was a sentence alternative, but dissent from that portion of the opinion authorizing a piecemeal review by this Court. When conflict appears, it is our duty to examine the entire record and give defendant a “second appeal.”