author: CLARK, Supernumerary Circuit Judge.

text:
    Theodore AUSTIN, Jr. v. STATE.
    5 Div. 309.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.

      Whitesell, Gordon & Gallion, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for fifty years.

According to the testimony of Mr. L. A. Kelly, appellant entered Mr. Kelly’s store at Titus, in Elmore County, about 1:00 P. M. October 26, 1973. Appellant was accompanied by another man. There were about six customers in the store at the time. Appellant and his companion left the store and returned about 2:30 P.M. They asked for some bologna and went back to the meat case; Mr. Kelly also went back. Mr. Kelly testified that as he passed appellant appellant “hit me in the head with the hammer. Well, then, he picked up a — an old iron crate — a milk crate, and after I had hit the floor, and— he began to beat me in the face with that, and I had cuts through here, (indicating).” Mr. Kelly further testified that more than two hundred eighty-two dollars were taken from the store at the time. He said defendant-appellant was a stranger to him, but he positively identified him as the defendant on trial. He said that of the money taken from the store “they took a hundred and fifty dollars out of the safe”; “the wrapper' was still around it.” He said the other money was in the cash drawer, which amounted to more than one hundred thirty-two dollars. He testified the money belonged to him. He was taken that afternoon to a physician in Wetumpka, who testified that he had a skull fracture and a brain injury. He was then sent to Montgomery for further medical treatment.

Elmore County Sheriff Sidney Thrash and State Trooper Investigator Jonah Pemberton, Jr., were informed of the incident soon after it occurred. Both went to Kelly’s store. Sheriff Thrash arrived there first. He found a milk crate lying in the middle of the floor near the meat box, a hammer handle and a hammer head on the floor about six or eight feet apart. He found a stick on the ice box. Between 8:00 and 8:30 A.M. the following Monday, October 29, Sheriff Thrash and Officer Pemberton arrested appellant at Perkins Gin in Wetumpka. After each was examined at length on voir dire (on direct and cross), out of the presence of the jury, each testified that defendant confessed the crime in detail about seven and one-half hours after his arrest. Trooper Pemberton testified defendant said that he and Robert Mitchell robbed Kelly’s place, that they went in the store twice the afternoon of the robbery, that the first time there were too many people in there and they left. He testified appellant further said that he and Robert returned to the store, that Robert gave appellant a hammer and that Robert had a stick. He said Robert told appellant to hit the old man with the hammer. According to Officer Pemberton, appellant said he told Mr. Kelly he wanted some bologna, and as Mr. Kelly walked by him, he went up behind Mr. Kelly and hit him over the head with a hammer; that the hammer broke and he then picked up a milk crate and hit the man when he was trying to get up; he took some bills out of the cash register that Robert had left and picked up some bills that Robert had dropped. The witness further testified that the appellant stated that he and Robert then went into the Crenshaw community, where they divided the money, each getting one hundred and thirty-two dollars.

Sheriff Thrash testified as to his version of the confession by appellant. He testified that appellant stated that he and Robert Mitchell went to the store on the morning of October 26, came back to Wetumpka and played some pool and while playing pool decided to go to Mr. Kelly’s store and rob him. When they left the car, he put a hammer in his pocket and Robert put a stick in his pocket. According to Sheriff Thrash, appellant said he asked Mr. Kelly for some bologna and as Mr. Kelly walked ahead of him, appellant hit him beside the head with a hammer, the hammer head flew off and Mr. Kelly hit the floor; appellant threw the hammer handle down, grabbed a milk case and hit Mr. Kelly in the face with it, but Mr. Kelly “came on up anyhow, and shoved him out of the way, and ran towards the door . and Robert hit at him with the stick.” Mr. Kelly went out at the door, and appellant and Robert ran. He hesitated long enough to pick up the money that Robert had dropped from his hands as Mr. Kelly went by him. They got back in the car, threw the bank sack out on the side of the highway, eventually drove to the Cren-shaw section, where they pulled off the road and divided the money, “tearing the money wrappers off of the bills, and separating the money.” He said they divided it equally but that appellant “wound up with a little bit more than Robert, because I picked up that off of the floor that Robert dropped.” Sheriff Thrash further testified that he afterwards drove to the Crenshaw community and found two money wrappers, which were admitted in evidence. In addition, Sheriff Thrash said that on November 1 appellant handed him $63 and told him it was part of the money he took from Mr. Kelly’s place and to return it to Mr. Kelly.

The sufficiency of the evidence to sustain a conviction of robbery is not seriously questioned on appeal, and we are convinced that the evidence amply supports the verdict.

Appellant’s sole target is the action of the trial court in admitting evidence- of the confession of defendant as narrated in the testimony of Sheriff Thrash and Trooper Pemberton.

Appellant does not contend that the State did not present evidence that the confession was voluntary, but appellant strongly insists that the trial court abused its discretion in admitting the evidence of the confession.

We understand appellant’s contention to be that the trial judge should have disbelieved the testimony of the two law enforcement officials, which appellant states was “contradictory in material aspects” and believe the testimony of the accused, which, according to appellant, was to the effect that “inducements were made by both interrogators.” Appellant further contends that portions of the confession as testified to by either Sheriff Thrash or Trooper Pemberton or both were incorrect.

We do not consider that discrepancies between the testimony of Sheriff Thrash and the testimony of Officer Pem-berton discredit the testimony of either. On the other hand, we think that under all the circumstances shown by the record their failure to track one another precisely as to every detail of what took place, the exact time and place that everything was done and said, who was or were present at such time and place, and other details, tends to strengthen their testimony, if it needs strengthening, rather than weaken it. Notwithstanding any such discrepancies, after protracted questioning by defense as well as questioning by the State, this testimony is in essential features sufficient to show full compliance with all of the prerequisites to the admission in evidence of a confession as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and related cases.

Appellant, testifying on voir dire out of the presence of the jury, said that Officer Pemberton told him that if he cooperated, Sheriff Thrash could help him because he was a powerful and influential man and that Sheriff Thrash would help him if the cooperated and didn’t tell any lies. This was denied by Officer Pemberton. He further said that Officer Pemberton told him the death penalty was coming back and that he should plead guilty and not take the case to trial, which was denied by Officer Pemberton. Both officers testified emphatically that they offered no inducement whatever or threat of any kind.

Much is made by appellant of testimony by Officer Pemberton as follows:

“Q Could you have told him it would go lighter on him if he cooperated ?
“A Yes, sir, I could have. We were talking .
“Q And after this—sometime after you could’ve told him that, he did make a statement, didn’t he ?
“A Mr., I could’ve told him anything, but I didn’t.
“THE COURT: But the question is, did you tell him that ?
“THE WITNESS: No, sir, I did not.
“THE COURT: All, right, then

Appellant cites Womack v. State, 281 Ala. 499, 205 So.2d 579, in which it was held that a confession was inadmissible in view of undisputed testimony that an inducement “could have” been made. The difference is that here the witness clearly implied a condition contrary to fact, the mood of which would have been subjunctive ; in Womack, the witness made a factual statement, without any condition express or implied.

The testimony of appellant on voir dire as to the, circumstances leading to his confession was wanting in trustworthiness, we think. He denied that he “verbally confessed,” but he admitted that he signed a written confession, although he said he didn’t read the confession. There is no contention on his part that he was mistreated by the officers other than in the matter of offering him inducement, which, of course, is sufficient, if true, to vitiate the confession as evidence. Nevertheless, it is extremely difficult to believe that the claimed inducement would have influenced him to sign the confession without his knowing in substance, at least, what was in the confession. He was a high school graduate and had had a year and a half in college, although he said he had not done well in college.

The trial judge was acting well within his discretion in accepting the testimony of the law enforcement officers as to the circumstances preceding the confession in preference to the testimony of defendant. Furthermore, our review of such testimony convinces us that he reached a correct conclusion.

In insisting that the confession should not have been admitted in evidence, appellant emphasizes the period of time between the arrest of appellant and the confession, approximately seven and one-half hours. Unquestionably, this is a circumstance to be taken into consideration, but it is not sufficient under all the circumstances to make the confession inadmissible. Promptly after his arrest, he was informed of his constitutional rights. At that time appellant denied being in Titus on the day of the robbery and refused to make a statement. He was then taken to the fingerprint room of the Elmore County Jail. Upon being questioned there, he again denied knowing anything about the robbery. He made such denial to Sheriff Thrash and Officer Pemberton, and thereafter made a similar denial to Officer Pember-ton when Sheriff Thrash was not present. Sheriff Thrash had a third conversation with appellant in the presence of Robert Mitchell, and at that time appellant confessed. The confession was given some two to three hours after the second conversation with Sheriff Thrash. He was not questioned over an hour and a half on any of the several occasions he was questioned.

The testimony of defendant is free of any contention that he was adversely affected by the manner or length of the interrogation. His own testimony was to the effect that he was kindly treated rather than roughly intimidated. He does not even imply the type of mistreatment charged by defendant in Botsford v. State, 54 Ala.App. 482, 309 So.2d 835, in which a confession was taken after defendant had been in custody of the officers for about the same period of time as defendant in this case.

At the time of the confession defendant had not been taken before a magistrate. Appellant cites Code of Alabama, Title 15, Section 160, requiring an officer after the arrest of a person to “forthwith take him before a magistrate” and further cites Cary v. State, 76 Ala. 78, holding that one cannot plead as an excuse for failure to obey the provision of the statute that he was trying to obtain a statement from the arrested person incriminating himself or some other person. Appellant does not contend that the failure to have taken defendant before a magistrate in and of itself precludes the admission in evidence of the confession. He urges “that it is one of the elements to be considered in determining whether a confession is voluntary and is the product of the rational and free intellect of the appellant.” We have considered such element with all the other circumstances. Taking all of such circumstances into consideration, we are of the opinion that the confession of defendant was freely and voluntarily made, that he was fully advised of his privilege as to self-incrimination and his rights as to counsel, that he knowingly and intelligently waived such constitutional rights, and that the trial court was not in error in admitting the testimony as to defendant’s confession over the objections of defendant.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

Affirmed.

All the Judges concur.

      . Thus spoke Job (expressing the condition) to his miserable comforters : “I also could speak as ye do: if your soul were in my soul’s stead, I could heap up words against you, and shake mine head at you.” (Emphasis supplied) Job 16:4

      . Appellant’s attorney recognizes that the settled rule is against any such contention and has been since the McNabb Rule (note based on a constitutional question), McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, was rejected by the appellate courts of Alabama in Ingram v. State, 34 Ala.App. 597, 42 So.2d 30, rev’d on another ground, 252 Ala. 497, 42 So.2d 36 (1949). McElroy, Law of Evidence in Alabama § 200.08.


source: Caselaw Access Project

author: CATES, Presiding Judge. CATES, Presiding Judge.

license: Public Domain

text:
    Donald V. STINSON, alias v. STATE.
    6 Div. 687.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Rehearing Denied Oct. 21, 1975.

      Emily B. Gassenheimer, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin O. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   CATES, Presiding Judge.

Stinson appeals from a conviction of robbery for which the jury set his punishment at twenty years imprisonment.

I

We set out the tendencies of the State’s proof because presumptively the jury, by their verdict of guilt, relied thereon.

About 7:30 p. m., December 29, 1972, Mr. Gary Wyatt drove to the parking lot of the Western Super Market in Hoover, a suburb of Birmingham. The store was located alongside U. S. Highway 31.

Mr. Wyatt,, before he went in the store, noticed the driver of a two-tone Pontiac. Coming from the store three or four minutes later, Wyatt again saw this person, at this time, driving from the interior of the lot to the store entrance. Wearing a dark hooded military poncho, carrying a wadded up bundle, the stranger (to Wyatt) went into the supermarket. Wyatt used the mobile phone in his car to notify the Hoover Police dispatcher.

Wyatt saw the Pontiac’s driver go to the supermarket manager’s office, then run out of the store to the car and drive away. Wyatt followed the Pontiac which went into an alley behind another grocery store. The driver there left the Pontiac and got into the passenger’s side of another car. Wyatt, maintaining contact with the dispatcher, again followed. After a few blocks both cars came to U. S. Highway 31 where a red light held up traffic until two police cars arrived and blocked the road.

Officer Ray of the Hoover Police Department identified Stinson as the passenger in the car which Wyatt had followed. Mrs. Stinson was the driver. Looking through the windshield Ray saw a black satchel from which paper money protruded. He seized the satchel. Inside he found seventeen hundred and fifty dollars in assorted bills, a check endorsed for deposit to Western Super Market and a rubberized mask. Beside Stinson was a rubberized dark green raincoat.

The testimony of the store manager, Wyatt and Officer Ray linked a set of circumstances sufficient to support the jury’s verdict.

II

A search of the abandoned two-tone Pontiac — made within three or four minutes after Ray apprehended Stinson— yielded a loaded pistol. It was found in full view lying on the front seat. The officer who found it was in the shopping center alley — virtually a public way. He did not open the car door until after he had seen the gun. No objection was made to Ray’s testimony that the car was stolen.

Stinson had no standing to complain of the seizure of the gun. Moreover, the interval between the crime and capture presents a stronger circumstantial web than that approved in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.

III

The seizure of the satchel at the road block falls under plain view. Ray had probable cause both from radio dispatches and Wyatt’s on the scene information to believe that Stinson had committed a felony, robbery. The satchel, with money showing, was inferably the fruit of the crime and hence seizable as evidence. The trial judge correctly ruled the satchel, mask and raincoat were admissible for the jury to examine.

IV

The defendant called an FBI agent and asked him:

“Mr. Haven, did my wife or John Aims, who was later convicted of bank robbery, did Mr. Aims or my wife, either one, ever make a statement that Mr. Aims robbed this place and I did not know anything about it ?”

Aims was in a Federal penitentiary. He could have been interrogated with the resulting deposition available as evidence. Code 1940, T. 15, §§ 297 & 298.

The question put to Agent Haven called for inadmissible hearsay. Snow v. State, 58 Ala. 372. There was no error in the trial court’s sustaining the State’s objection to the question set out below.

V

Appellant complains of “a multitude of errors and inconsistencies” but cites no adverse ruling of the trial judge.

The settled interpretation of Code 1940, T. 15, § 389, is that this court in searching the record is confined to points on which rulings adverse to the defendant are had in the trial court. The Plain Error doctrine applies to death penalty cases but not to other convictions. Echols v. State, 47 Ala.App. 23, 249 So.2d 639.

The judgment below is

Affirmed.

All the Judges concur.

ON REHEARING

CATES, Presiding Judge.

In giving his oral charge to the jury the trial judge read to them the whole of the indictment omitting only the caption and the endorsements. Further, he stated the State must convince them beyond a reasonable doubt of the material averments of the indictment.

The indictment thus read to jury was the proper one, charging robbery of B. J. Waldrip who was proved to be the manager of the Western Super Market.

As the jury filed from courtroom the court addressed counsel for both parties:

“The indictment, here it is. Gentlemen, you check if you will, so that nothing will go back that is not in evidence.”

Ten minutes later, the defendant and counsel being present, the jury through the bailiff advised that it had received the wrong indictment, i.e., one against Stinson for grand larceny of a Pontiac car. The correct one was sent in to the jury.

After the verdict, appellant orally moved to set it aside because of the jury’s having the improper indictment.

While under 51 Ala.R.Civ.Pr., pleadings may not go out, the rule is otherwise in criminal trials.

It is proper for the indictment to go to the jury room with the jury. 23A C.J.S. Criminal Law § 1369, 75 Amjur2d, Trial § 1027.

In Sanders v. State, 131 Ala. 1, 31 So. 564, McClellan, C. J., said, “It was necessary that the indictment should be taken by the jury on their retirement * * Apparently, it is adjured in such cases that, upon request, the trial judge direct the jury that the true bill is not evidence. Little v. United States, 10 Cir., 73 F.2d 861.

In People v. Katz, 356 Ill. 440, 190 N.E. 913, the State had nol prossed three of the four counts of the indictment. The court found the defendant was not prejudiced by the jury’s having the whole indictment with them. See also Anno. 120 A.L.R. 463 and ABA Standards for Crim.Justice, Trial by Jury, § 5.1(a).

Apparently the errant indictment here was for stealing the car used to go to and from the Western Super Market. The use of this stolen vehicle inferably to throw pursuers off the trail made evidence of its existence relevant under the general issue framed by Stinson’s plea to the robbery indictment. Hence, we find no prejudicial error in the inadvertent substitution of the wrong indictment. The Katz case, supra, affords an analogous rationale.

We have examined the applications both pro se and of counsel and consider we should extend them.

Opinion extended.

Application overruled.

All the Judges concur.

      . See Stinson v. State. 55 Ala.Ct.App. 629, 318 So.2d 325 (1975).


text:
    Millert Moss HOLLIDAY v. STATE of Mississippi.
    No. 48788.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    Finch & Finch, Iuka, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, P. J., and PATTERSON and SUGG, JJ.
   Affirmed.


author: BROOM, Justice.

text:
    JOHNSON & HIGGINS OF MISSISSIPPI, INC. v. COMMISSIONER OF INSURANCE OF the State of MISSISSIPPI.
    No. 48360.
    Supreme Court of Mississippi.
    Nov. 3, 1975.

      Watkins & Eager, Jackson, for appellant.
    Wells, Gerald, Brand, Watters & Cox, Calvin L. Wells, Frank T. Moore, Jr., William B. Wicker, Jackson, for appellee.
    Before RODGERS, SUGG and BROOM, JJ.
   BROOM, Justice.

The Commissioner of Insurance refused to issue a full line insurance privilege license to appellant, Johnson & Higgins of Mississippi, Inc., a Mississippi corporation, and a similar license to the other appellant, John A. Spencer (Spencer), an individual, as resident agent for the Corporation. On appeal to the Circuit Court of the First Judicial District of Hinds County, the Commissioner’s action was affirmed. The two applicants appeal here and we reverse.

Chief among the several issues raised are the following: (1) Is a corporation eligible for licensing as an insurance agency pursuant to Mississippi Code Annotated sections 83-17-205 (1972) and 27-15-85 (1972)? (2) May the Commissioner of Insurance pierce the veil of a Mississippi corporation and ignore its corporate existence upon finding that it is wholly owned by a New York corporation?

The following facts are revealed by the record. On June 12, 1973, Johnson & Higgins of Mississippi (authorized by its charter to conduct a general agency and a general business as insurance agent in various classes and forms of insurance and re-insurance) applied for a full line privilege license. Accompanying that application was an application for a full line privilege license for Spencer, who was to serve as resident agent. By letter on July 23, 1973, the insurance commissioner formally declined to issue the licenses applied for. On September 6, 1973, the applicants requested a recorded hearing on the matters.

Hearing was held on December 10, 1973, after which the Commissioner again refused to issue the licenses. In support of her decision, she cited the following reasons :

(1)That Johnson & Higgins of Mississippi is a wholly owned subsidiary of Johnson & Higgins, Inc. (a New York corporation herein referred to as Johnson & Higgins of New York) and that Johnson & Higgins of New York refuses to disclose its stockholders. Further, full disclosure of the stockholders would be necessary in order to assure compli-anee with Mississippi Code Annotated section 83-21-15 (1972) dealing with the regulation of non-resident brokers or agents.
(2) That the petitioners offered no evidence as to whether any officer, director or shareholder of Johnson & Higgins of New York currently held a license as a non-resident agent.
(3) That the petitioners presented no evidence that they did not contemplate violating Mississippi Code Annotated sections 83-17-21 (1972), requiring that policies be written through resident local agents, or 83-17-7 (1972), forbidding payment of commissions on policies written on risks in this state to an unlicensed recipient.
(4) That it has been the past practice of the Commissioner of Insurance of this state to deny a license to any corporation where it was known to such commissioner that the corporation was dominated by non-residents of the state and particularly when there was an indication that a nonresident agent licensed by the state had an interest in such a corporation.

I.

The first proposition we reach is: May a corporation be licensed as an insurance agency under the laws of Mississippi ? Appellees contend that the 1964 amendment of current Mississippi Code Annotated section 83-17-205 (1972), which requires that the applicant for a license to be a “natural person,” effectively denies a corporation the right to be licensed as an agency. This construction overlooks the fact that two separate classifications of licensees are clearly contemplated by the legislature in statutes related to insurance agents and agencies.

Mississippi Code Annotated section 27-15-85 (1972), entitled “Incorporated insurance agencies and general agencies,” imposes a state-wide privilege tax on such agencies. Mississippi Code Annotated section 27-15-87 (1972) imposes a similar tax on agents or solicitors.

Section 27-15-85 provides in part:

Every person acting as agent or solicitor for any such agency shall qualify under the provisions of sections 83-17-201 to 83-17-225, Mississippi Code of 1972; and no person shall be exempt from the privilege tax placed on insurance agents by this section by reason of the fact that he is a stockholder or officer in any such incorporated agency, or by reason of the fact that he represents such an agency, but every agent or solicitor, except two executive officers of such agency, shall pay the privilege tax herein imposed.

Section 27-15-87 provides:

Whenever a solicitor is employed by any such agent or agency to solicit business for its account .

At least three other statutes refer to the existence of an incorporated agency: Mississippi Code Annotated sections 83-5-19 (1972), 83-17-203 (1972), 83-17-213 (1972).

Although in the strict legal sense, “agency” denotes the relationship between a principal and one empowered to act for him, it has been recognized that “agency” in every day usage may also refer to a place of business. Atlanta Accident Ass’n v. Bragg, 102 Ga. 748, 29 S.E. 706 (1897).

Logic dictates the conclusion that the legislature recognized the existence of an incorporated agency operated by a qualified agent or agents, taxable by law, capable of maintaining a central place of business, complete with clerical personnel, for the administration of its affairs. This conclusion is augmented by the fact that the blank forms, provided by the Commissioner herself to license applicants, repeatedly and expressly recognized the distinction between individual agent applicants and corporate agency applicants.

The above statutes considered in their entirety with the attendant circumstances, coupled with the fact that there are approximately 276 licensed incorporated insurance agencies in Mississippi, preclude any finding that a corporate agency is not a proper legal entity for licensing.

II.

By requiring that Johnson & Higgins of New York disclose the rolls of its stockholders, the Commissioner ignored the separate corporate identities of Johnson & Higgins of Mississippi and Johnson & Higgins of New York.

The general rule of law basic to the concept of the corporation is that the distinct corporate identity will be maintained unless to do so would subvert the ends of justice. In disregarding the separate existence of Johnson & Higgins of Mississippi, the Commissioner made the following findings of fact:

1. That Johnson & Higgins of New York owns one hundred percent of the stock of Johnson & Higgins of Mississippi.
2. That Johnson & Higgins of New York is a “closed corporation.”

Based on these findings, the Commissioner chose to ignore the corporate existence of Johnson & Higgins of Mississippi and required the disclosure of the shareholders of Johnson & Higgins of New York.

With regard to corporate identity, it has been said:

The corporate entity is distinct although all or a majority of its stock be owned by a single individual or corporation, or although the corporation is a so-called “family” or “closed” corporation. 18 Am.Jur.2d Corporations § 13 at 558-59 (1965).

Also:

Ownership of all the stock of a corporation coupled with common management and direction does not, however, operate as a merger of the two corporations into a single entity .... One corporation may be disregarded where the two are identical or indistinguishable in fact. Unless it is a mere instrumentality or agency or adjunct in that sense, or as a sham or is used in fraud, by the dominant corporation, it will not be disregarded; and it will not be disregarded unjustly. (1 W. Fletcher, Cyclopedia of the Law of Private Corporations § 43 at 209 (Perm.Ed.1974)).

Nothing in the record indicates that Johnson & Higgins of Mississippi was a mere instrumentality, or agency or adjunct of Johnson & Higgins of New York in the sense that the two corporations are identical or indistinguishable in fact. Nor was it shown that Johnson & Higgins of Mississippi was a sham or to be fraudulently used by the dominant corporation.

Mississippi has recognized the wisdom of maintaining separate identities:

Ordinarily two or more corporations are separate and distinct entities although the same individuals are the in-coiporators of, or own stock, in the several corporations, and although such corporations may have the same persons as officers. Murdock Acceptance Corp. v. Adcox, 245 Miss. 151, 163, 138 So.2d 890, 895 (1962).

Piercing the veil of a subsidiary in order to deal with its parent corporation should not be lightly undertaken:

[T]he mere fact that one owns all the stock of the other, or substantially all, is not enough to warrant disregard, in the absence of some fraudulent purpose; nor is the fact that there was an opportunity to exercise control. Furthermore the fact that the shareholders of the two corporations are the same is not of itself sufficient to treat the two corporations as one. Fletcher, supra, § 43, at 210.

The record does not reveal that recognition of the two corporations as separate entities would do violence to clear legislative purposes as expressed in pertinent statutes; therefore, their separate existence should have been recognized. 18 Am.Jur.2d Corporations § 14 at 559-61 (1965).

III.

Having determined that the Commissioner erred in disregarding the legal existence of Johnson & Higgins of Mississippi, it follows that the Mississippi Corporation’s request was a valid application for a domestic corporate agency license. Mississippi Code Annotated section 83-21-15 (1972) deals solely with the licensing and regulation of non-resident agents and brokers. Any contemplated violation would have to be on the part of a non-resident agent or broker and not on the part of the corporation. The remedy would lie against the offending individual. Section 83-21-15 cannot be validly construed to authorize the denial of a corporate agency license to a qualified applicant. The record shows that Mr. Avegno, President of Johnson & Higgins of Mississippi, is a licensed nonresident agent, but it is not made to appear that he has any “pecuniary interest” in the corporation as prohibited of such non-resident agents by section 83-21-15. Should it be shown that such a licensed non-resident agent has a pecuniary interest in the corporate licensee, then not the license of the corporation but of the individual person (Avegno) would be in jeopardy.

Mississippi Code Annotated section 83-17-21 (1972) deals specifically with insurance companies not incorporated under the laws of this state. At the time of its application, Johnson & Higgins of Mississippi had already been incorporated under Mississippi statutes and was applying for a license to operate as an incorporated agency. The statute (§ 83-17-21) is clearly inapplicable.

IV.

The Commissioner also found that there was no evidence of the agency’s intention to comply with Mississippi Code Annotated section 83-17-7 (1972) forbidding commissions to unauthorized agents. Once Johnson & Higgins of Mississippi is licensed as a corporate agency, it will be qualified under the statute to receive such commissions. Assuming that the Commissioner infers a violation of this statute from the fact that Johnson & Higgins of Mississippi will pay dividends to Johnson & Higgins of New York, it should be noted that dividends are payable only from distributable earnings. Even though such earnings may derive from commissions paid to the agency, we cannot hold that the possibility of payment of dividends therefrom would be in violation of section 83-17-7. See Rogers v. Ramey, 198 Ky. 138, 248 S.W. 254 (1923), where the Kentucky court distinguished “dividends” from “rebates” which were prohibited by statute. We recognize the difference between “dividends” and “commissions.” Commissions, of course, may not be paid in violation of the statute, but such a violation is not demonstrated by the evidence which was presented the Commissioner.

The regulatory statutes should not be applied prospectively to deny licenses to presently qualified applicants. Their good faith will be presumed in the absence of some overt manifestation of an intention to the contrary. Once they have complied with the statutory requirements, they have no further burden of proof to negate a mere possibility of some future violation.

V.

The Commissioner found that she, and the previous commissioners, had consistently refused to grant a license to any corporation “where it was known to such commissioner” that it was dominated by nonresidents of the state, and particularly where a question was raised that a nonresident agent of the state of Mississippi had an interest in such corporation. We shall discuss both aspects of this feature of the case.

First, the Commissioner may exercise only those powers that have been expressly granted by the constitution or by statute or may be reasonably inferred from those which have been so granted. 2 G. Couch, Cyclopedia of Insurance Law § 21:5 at 446 (2d ed. 1959). There is no statutory requirement that a corporation to be licensed as an agency be controlled by residents of Mississippi, and the Commissioner had no right to so require. She may not impose limitations not authorized by law. Id. The previous Commissioner conceded on the record that he might have exceeded his statutory authority in enforcing such a requirement. When an applicant satisfies the statutory requirements, it is the duty of the Commissioner to issue a license. She cannot add to such requirements in the absence of express authority to do so. Couch, supra, § 21:11 at 455.

Second, the findings of the Commissioner reflect that such a requirement was enforced only when it was known to the Commissioner that the corporation was dominated by non-residents of Mississippi. In the absence of some uniform procedure for the disclosure of such information, the actions of the Commissioner based on happenstance knowledge can only be characterized as arbitrary and capricious.

Accordingly, we reverse the order of the circuit court and remand the cause to the Commissioner with directions to issue the licenses to Johnson & Higgins of Mississippi, and John A. Spencer, as applied for.

Reversed and remanded.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON and WALKER, JJ., concur.


text:
    Carolyn P. BARROW v. STATE of Mississippi.
    No. 48772.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    Richard L. Yarbrough, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   Affirmed.


author: INZER, Justice:

text:
    In re ESTATE of Lula S. TORIAN. Ralph CRUM et al. v. FIRST NATIONAL BANK OF MEMPHIS, Executor and Dorothy Hope Sullivan, et al.
    No. 48377.
    Supreme Court of Mississippi.
    Nov. 3, 1975.

      Butler, Snow, O’Mara, Stevens & Can-nada, Lawrence J. Franck, Jay A. Travis, III, Jackson, for appellants.
    Holcomb, Dunbar, Connell, Merkel & Tollison, Clarksdale, for appellees.
    Before PATTERSON, INZER and WALKER, JJ.
   INZER, Justice:

This is an appeal by Ralph Crum and others, the residuary legatees of the will of Lula S. Torian, from a decree of the Chancery Court of DeSoto County denying the petition of the executor to withdraw the original will and to transfer jurisdiction to the state of the domicile of the deceased, and from an adjudication that the estate tax is to be paid out of the residue of the estate. We affirm.

Mrs. Lula B. Sullivan Torian died on October 24, 1972, leaving a last will and testament executed on February 17, 1970, and two codicils, one dated March 26, 1970, and the other dated January 27, 1971. The will and codicils were executed in DeSoto County. The codicil dated March 26, 1970, appointed the First National Bank of Memphis as executor and directed that the executor use the law firm to which Joel Walker belonged in Hernando, Mississippi, as attorneys for the executor because of his long association with the family.

At the time of her death and at the time the wills and codicils were executed, Mrs. Torian’s legal domicile was in West Memphis, Arkansas. After her death, the executor filed a petition to probate the original will in DeSoto County. The petition alleged that the testatrix was a resident of Arkansas, that at the time of her death she owned no real property in Arkansas, and that she owned approximately 900 acres of land in DeSoto County, and that the probate of the will in DeSoto County, Mississippi, where the bulk of her estate was situated was necessary and desirable. Qn November 3, 1972, an order was entered admitting the will to probate and appointing the First National Bank of Memphis executor without bond. The executor qualified and letters testamentary were issued to it. Notice to creditors was published as required by law.

Clause I of the will as amended by the second codicil dated January 27, 1971, devised to Mrs. Torian’s husband and the nine appellants herein all of her stock in Schlering-Plough Corporation to be shared equally. Clause II of the will devised to Ralph Crum, one of the appellants herein, nine or ten acres of land in DeSoto County, known as part of the “Old Cheatum Place.” Clause III of the will bequeathed to her husband H. G. Torian $10,000 cash. Clause IV of the will devised $200 to the Methodist Children’s Home in Jackson, and $2,000 to the Methodist Hospital in Memphis.

Clause V of the will devised to Dorothy Hope Sullivan, Robert Lamb Sullivan, David Sullivan and Warren Ware Sullivan all the remainder of decedent’s land in DeSoto County consisting of 920 acres to be shared equally.

In Clause VII the testatrix provided that all the rest, residue and remainer, including any lapsed legacies in cash that she had left, was devised and bequeathed to the appellants, share and share alike.

On July 26, 1973, the executor filed a petition styled “Petition of Executor for Permission to Withdraw Original Will.” The executor alleged that an authenticated copy of the will of Mrs. Torian had been probated in the Probate Court of Critten-den County, Arkansas, and that the bank had been appointed executor by the Arkansas Court. However, the executor alleged that there was some question about the validity of probate of the authentic copy of the will executed by a resident of Arkansas and that no authority appeared to exist to probate a copy of an original will of a resident of Arkansas.

The reasons given in the petition for the request that the original will be transferred to Arkansas was that decedent’s will and codicil both stated that she was a resident of Arkansas, that at the time of her death she was married to Mr. Torian who was and still is a resident of Arkansas and that she died in Arkansas. Furthermore, the testatrix and her husband resided on property in West Memphis, Arkansas, to which reference was made in her will. All parties in interest were made parties defendant to the petition and process was issued for them.

The appellants, who are the residuary legatees, answered and joined in the prayer of the executor to be allowed to withdraw the original will so that it could be probated in Arkansas.

The appellees, all residents of Mississippi, to whom the 920 acres of land in De-Soto County was devised, answered the petition and denied that Mrs. Torian owned any land in Crittenden County, Arkansas, that was subject to probate. Appellees further alleged that the value of her personal estate in Arkansas was less than $3,000 and that under the laws of Arkansas no administration of the estate was necessary. The answer alleged that the probate of the original will in DeSoto County was proper and that Section 509, Mississippi Code 1942 Annotated, prohibited the withdrawal of the original will after probate in Mississippi. The answer was made a cross-bill against the executor and alleged that the estate of Mrs. Torian was of such size that payment of federal estate taxes was required; that such taxes had not been paid; and that the non-payment of such taxes unnecessarily encumbered the title to the cross-respondents to the land devised to them. Cross-petitioners prayed that the executor be required to pay the proper estate taxes and to allocate the burden of such taxes as required by the laws of the State of Mississippi.

In answer to the cross-bill, the executor and appellants admitted that the estate would owe federal estate taxes, but alleged that a controversy existed between the beneficiaries of the estate as to the domicile of the decedent and the related question of which state’s law should determine the pro-ration of such taxes. The executor contended that since the decedent was a resident of Arkansas, the liability of the parties for the payment of the estate taxes should be determined by the probate court of the county in which the decedent was domiciled at the time of her death.

The pleadings raised two issues: one, whether the executor should be allowed to withdraw the original will in order that it would be probated in Arkansas; and two, if not so allowed to withdraw the original will, whether the Mississippi law or Arkansas law should be applied as to the payment of federal estate taxes.

The testimony reveals that Mrs. Torian, prior to her marriage to Mr. Torian in 1960, had lived in DeSoto County for many years. She was a good business woman and was successful in operating her farming interests. She did her banking with the First National Bank in Memphis. At the time she married Mr. Torian she was 79 years of age. It was her first marriage and Mr. Torian was a widower who had retired. He evidently was a man of modest means and maintained a small residence in West Memphis, Arkansas.

After her marriage she lived with her husband in West Memphis, but continued to maintain her large home in DeSoto County and kept it staffed with two servants. Electrical and telephone service continued in the home, and some clothing and food were kept there. She also kept some of her jewelry in a safe. Until the last year before her death, Mrs. Torian came to Mississippi every week or two and would stay a day or two at a time and on occasions stayed much longer. She continued to supervise her farming interests, to keep her membership in the Methodist Church at Walls, Mississippi and to vote in Mississippi, she last voted in the two primaries and the general election in 1971. After her marriage, Mrs. Torian continued to refer to DeSoto County as her home.

At the time of her death, the only real property Mrs. Torian owned in Arkansas was an interest in the home in which she and Mr. Torian resided. The title to the property was in both parties as an estate in entirety and it passed to Mr. Torian by operation of law. She owned no personal property located in Arkansas except some personal effects and household furnishings valued less than $3,000.

Her bank accounts were all with Memphis banks and her stocks and bonds were in a lock box in the First National Bank of Memphis. After her death and after the will' was probated in Mississippi, the executor took charge of these assets amounting to approximately $486,000.

The chancellor found that in view of the express provisions of Section 91-7-33, Mississippi Code 1972 Annotated, the original will was properly probated in DeSoto County, Mississippi, and that by virtue of Section 91-7-31, the original will could not be withdrawn from the clerk’s office.

The chancellor further found that by virtue of her being married and living with her husband whose domicile was in Arkansas, the testatrix was legally domiciled in Arkansas at the time of her death, but in her own mind, her home and only home was in Mississippi. In the chancellor’s opinion he stated that he found from the evidence that Mrs. Torian intended for her estate to be wound up in accordance with Mississippi law. As we construe his opinion, we determine that for that and other reasons, the chancellor found that the contacts of the forum state were of greater significance than those of the domiciliary state.

A decree was entered dismissing the petition to transfer jurisdiction to the probate court in Arkansas and directing that the estate taxes and all other liabilities of the estate, including administration expenses, be paid from the residuary estate.

On appeal, appellants argue two points for reversal of this case. Point I is as follows : Although the Mississippi court had jurisdiction to admit the will of the nonresident testatrix to probate, nevertheless, since the executor probated the will in this state by mistake and thereafter sought to withdraw the will to present it for probate in Arkansas, the domiciliary state, the Mississippi court as a matter of comity should have declined jurisdiction or deferred to the courts of the domiciliary state on the issue of which parties should bear the burden of estate taxes. Point II is as follows : Having assumed jurisdiction the Mississippi court should have applied the law of Arkansas to determine which parties should bear the burden of estate taxes, absent a clearly expressed intent to the contrary. The law of the state of the domicile governs that determination. Arkansas law compelled the apportionment of such taxes.

We find no merit in either of these arguments. As to Point I it is clear from the record that the will was not probated in Mississippi by mistake. In fact, the petition to withdraw the original will and transfer jurisdiction to Arkansas does not allege that the will was probated in Mississippi by mistake. Neither is there any proof that the will was probated in Mississippi through mistake. The only testimony even tending to show a mistake was the testimony of Mr. Blumenthal, the present trust officer of the bank, who drew a conclusion on behalf of the bank that it was a mistake to offer the will for original probate in Mississippi when the testatrix was domiciled in Arkansas at the time of her death. However, Mr. Blumenthal was careful to point out that he was not the trust officer at the time the will was probated in Mississippi and that he had no idea as to what prompted the bank to offer the will for probate in Mississippi instead of Arkansas. He then said :

All I can say is that we found ourselves in this present situation. We found an ambiguity of tax law and in attempting to clarify what we should do we sought the best way to bring it to the Court’s attention. I don’t believe that we have made any intentional mistakes or any mistakes otherwise.

The chancellor correctly held by virtue of the provisions of Section 91-7-33 the original will was properly probated in Mississippi in the first instance. The chancellor also correctly held that since the original will was probated in this state Section 91-7-31, prohibited withdrawal of the original will.

Having assumed jurisdiction, the Mississippi court was not required by comity to defer to the courts of the domiciliary state on the issue of which of the parties should bear the burden of the estate taxes. To have done so would have been contrary to the public policy of this state announced by our statutes and decisions of this Court.

The forerunner of Section 91-7-33, supra, was construed in Carroll v. McPike, 53 Miss. 569 (Br. & Hem. 1876):

The general doctrine, as declared by Story, in Conflict of Laws, § 518, is that an administration in any other country than that of the domicile of the deceased is treated as in its nature ancillary merely to that in the country of the domicile, because “the final distribution of his effects among his heirs or distributees is to be decided by the law of his domicile.” This reason wholly fails in its application to this State, and the doctrine built on it is entirely subverted by our statute, declaring that personal property situated in this State shall descend and be distributed according to the laws of this State, notwithstanding the domicile of deceased may have been in another State. Code, § 1950. In this State administration of the effects here of a deceased person, no matter where his domicile was, is independent of all other administrations, and to be conducted in all respects as if the decedent had been a citizen of this State, when he died. Debts are to be paid according to the assets and any surplus is to be distributed here. All creditors, no matter where residing, nor where the debts were contracted, are entitled to prove their claims here, and proceed in our courts to enforce them, and to share in the assets here.

(53 Miss. at 576, 577).

Bolton v. Barnett, 131 Miss. 802, 95 So. 721 (1923), involved the will of Mrs. Bolton who resided with her husband in Memphis, Tennessee, at the time of her death. She had lived until a few years before her death in Prentiss County, Mississippi. She owned a home and some small amount of personal property in Mississippi, and after her death, her original will was probated in the Chancery Court of Prentiss County, where the property was situated. The question was raised as to whether the Chancery Court of Prentiss County had jurisdiction, and this Court pointed out that under the provisions of Section 2004, Code of 1906, now Section 91-7-33, Mississippi Code 1972 Annotated, the original will could be proven and admitted to probate in the first instance in Mississippi, and that the Chancery Court of Prentiss County had jurisdiction to admit the will to probate and to construe it. A question was also raised as to the right of the husband of the testatrix to renounce the will, since under the law of Tennessee, the domicile of the deceased, the husband had no right to renounce the will. In answer to this contention, this Court stated:

Because of our present laws, in some ways peculiar, with reference to personal property, and especially so because of the special permission to originally probate a foreign will here, these probates and administrations are now original, and in no way ancillary to the probate at the domicile of the testator.
Since the original will may be probated here, it follows as a matter of right and justice that it may be renounced here in accordance with our statute upon renunciation. The Garland Case, supra, says the right of renunciation is available only in the proper tribunal of the testatrix’s domicile because it is an incident to the jurisdiction of the tribunal which has exclusive power to admit the will to probate, and proceeds from the jurisdiction over the matter to probate. Under our present law our court has the jurisdiction to admit the will to probate in the first instance, and therefore the right of renunciation pertains to this tribunal. We neither look to the state of the domicile of the testator for the power to renounce nor to the share to be taken upon the renouncing of the will either of the real estate or the personal estate situated here, but look to our own laws for both because of the original probate of the will here. Under our law the husband has the right to renounce the will. This statute does not give the right of renunciation to only, citizens of this state, but gives it to any husband or wife upon the probate of the will of the deceased. (Emphasis added). (131 Miss. at 826, 827, 95 So. at 726.)

As to the payment of debts and expenses of administration of the estate the pertinent part of Section 91-7-91, provides:

The goods, chattels, personal estate, choses in action, and money of the deceased, or which may have accrued to his estate after his death from the sale of property, real, personal or otherwise, and the rent of lands accruing during the year of his death, whether he died testate or intestate, shall be assets and shall stand chargeable with all the just debts, funeral expenses of the deceased, and the expenses of settling the estate. The lands of the testator or intestate shall also stand chargeable for the debts and such expenses over and above what the personal estate may be sufficient to pay, and may be subjected thereto in the manner hereinafter directed.

It is clear from this statute and the decisions of this Court that in the absence of a contrary provision in a will, resort must first be had to the personal property in the payment of debts and expenses of the estate including federal estate taxes, before resort may be had to real property. It is also clear that resort must be first had to personal property not specifically devised by the will. Temple v. First National Bank of Meridian, 202 Miss. 92, 30 So.2d 605 (1947); Gaines v. Klien, 203 Miss. 271, 34 So.2d 489 (1949), and Riegelhaupt v. Ostroffsky, 237 Miss. 521, 115 So.2d 331 (1959).

Appellants cite numerous cases from other jurisdictions which hold that the apportionment of federal estate taxes when a decedent owns property in several states should be determined by the law of the decedent’s domicile. Appellants rely heavily on Mazza v. Mazza, 154 U.S.App.D.C. 274, 475 F.2d 385 (1973), in support of their argument that the law of the decedent’s domicile should control. In Mazza, the decedent was domiciled in Maryland and his will was probated in Maryland. Maryland also had a statute providing for apportionment of federal estate taxes. After his widow paid the estate taxes she sued in the District of Columbia seeking contribution from decedent’s sister, who inherited by operation of law some of the property located in the District. Although the District of Columbia did not have an apportionment statute, the federal court declared that the law of Maryland should apply in such a case. However, that court did not arbitrarily apply the rule of decedent’s domicile, but held that Maryland’s law should apply under the “interest analysis approach.” Maryland clearly had a greater interest in the controversy, and the court stated:

The relevant inquiry focuses on the relationships of the two jurisdictions to the controversy, the interests involved, and whether application of foreign law would offend a strong and clearly defined local policy. (475 F.2d at 391).

In the case before us, the forum state, Mississippi, and not the domiciliary state, Arkansas, had the greater substantial interest in this controversy. The application of the Arkansas statute would not serve the State of Arkansas or any citizen thereof. The property in Arkansas went to decedent’s husband and is unaffected by the Arkansas apportionment statute which provides that no such taxes shall be apportioned against the surviving spouse with respect to property received by such spouse, the value of which is deductible for federal estate tax purposes. Thus, the only interest that the State of Arkansas has in this litigation is the fact that the domicile of the decedent was in Arkansas at the time of her death. On the other hand, the situs of the real property involved is in Mississippi, and the specific devisees to be affected are residents of Mississippi. The residuary legatees are residents of Tennessee. The personal property which decedent left was all located in the State of Tennessee at the time of her death and is now in the hands of the executor and subject to the Chancery Court of DeSoto County, Mississippi. We held in Mitchell v. Craft, 211 So.2d 509 (Miss.1968), that a case is to be governed by the law of the forum unless it is expressly shown that a different law applies, and that in case of doubt, we will naturally prefer the laws of our own state. Here, Mississippi has the dominant interest and applying the “interest analysis approach,” the court correctly held that the Mississippi law would apply. Furthermore, to apply the Arkansas apportionment statute, would be repugnant to the public policy of this state.

We hold that the chancellor was correct in holding that the estate taxes should be paid according to Mississippi law. The executor was under no compulsion to probate the will in Mississippi and having submitted itself to the jurisdiction of the Chancery Court of DeSoto County and collecting the assets pursuant to Letters Testamentary granted in DeSoto County, Mississippi, the estate taxes and other debts of the estate must be paid in accordance with the Mississippi law.

For the reasons stated, the decree of the Chancery Court of DeSoto County must be and is affirmed.

Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.


text:
    James D. BURNS v. Sarah Atkins Perrigen BURNS.
    No. 48431.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    Billy J. Jordan, Thomas G. Wallace, Columbus, for appellant.
    Stone & Graham, Columbus, for appellee.
    Before INZER, WALKER and BROOM, JJ.
   Affirmed.


author: GILLESPIE, Chief Justice.

text:
    James Earl CUMMINGS v. STATE of Mississippi.
    No. 48755.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    John W. Land, Rosedale, Boyd P. Atkinson, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, BROOM and ROBERTSON, JJ.
   GILLESPIE, Chief Justice.

James Earl Cummings was convicted by the Circuit Court of Bolivar County of the crime of burglary and sentenced to a term of six years in the penitentiary.

Cummings was indicted for burglarizing the automobile of Herman E. Powell. Powell was driving his automobile when he saw Cummings hitchhiking on the side of the road. Powell stopped and picked up Cummings, and they made several stops before arriving at Cleveland, Mississippi, where they went into a beer joint and ordered a beer. During each of the pre-Cleveland stops, Powell checked his three pocketbooks which were carried separately on his person, under the arm rest of the front seat, and in his coat which was hanging on the back of the driver’s seat. While they were in the beer joint, Powell began shooting pool and subsequently noticed that Cummings had left the room. He became suspicious and went to his car which he had locked before going into the building. He found that the two pocketbooks which he had left in the automobile were missing. So was Cummings. The next morning after the police were notified of the incident, Cummings went into Jay’s Department Store and selected some merchandise and offered in payment one of Powell’s credit cards. The store clerk called the bank and learned that the credit card was stolen. By that time, Cummings had disappeared but was later arrested.

The principal argument made by defendant is that the use of a stolen credit card constitutes a separate offense; therefore, the trial court erred in admitting evidence of the attempt by Cummings to use one of the credit cards. He relies upon the well established rule that the issue on a criminal trial should be single and the testimony should be confined to that issue, and on the trial of one offense the prosecution should not be allowed to show that the defendant was guilty of other offenses. Sumrall v. State, 257 So.2d 853 (Miss.1972). But there are numerous situations where this rule does not apply. 29 Am.Jur., Evidence § 321 (1966).

We are of the opinion that on trial of a burglary offense, when items have been taken in the burglary, evidence, otherwise admissible, concerning the use or attempted use of those items, is not to be excluded simply because the use or attempted use might technically constitute a separate offense. If this were not so, the prosecution would, often times, find it extremely difficult, if not impossible, to get a conviction in many cases. A simple illustration will point this out. Suppose “A” pointed, aimed, and fired a gun at “B”, resulting in “B’s” death. Of course, murder and pointing and aiming are separate offenses. On trial of “A” for murder of “B”, could it reasonably be contended that the prosecution could not introduce evidence to the effect that “A” pointed, aimed and fired the fatal shot. We think not.

This Court held as early as Harris v. State, 61 Miss. 304 (1883), that possession of goods shortly after a burglary is evidence of guilt of the burglary. This rule has been recognized in other cases, such as Phillips v. State, 20 So.2d 95 (Miss.1944).

The evidence against Cummings was circumstantial. He had an opportunity to know that valuables were in the automobile, and he had an opportunity to leave a window partly open so that he could gain entrance to the automobile. Powell missed Cummings for a period of time, became suspicious, went to his automobile, and found that his billfolds had been stolen. Evidence of the possession of the stolen property was a vital link in the proof of Cummings’ guilt. The defendant may not complain that the details of his attempted use of the credit card showed him guilty of another crime. The State had the burden of persuading the jury of the truthfulness of the clerk’s testimony that Cummings had possession of the credit card, and the details of the attempted use of the credit card had a proper place in evidence to show the trustworthiness of the clerk’s testimony. The details tended to verify the testimony of the clerk who waited on Cummings when he attempted to use the credit card.

The other questions raised are not of sufficient merit to require discussion.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ., concur.


text:
    Carolyn Copeland BUSKIRK v. STATE of Mississippi.
    No. 48754.
    Supreme Court of Mississippi.
    Nov. 3, 1975.

      William F. Randle, Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   GILLESPIE, Chief Justice.

Carolyn C. Buskirk was adjudged in contempt of the Circuit Court of Lee County and sentenced to serve thirty days in jail and fined $300.

Mrs. Buskirk was summoned to appear as a witness in a criminal case. She was served with process requiring her to appear on February 4, 1974, and to “attend from day to day and from term to term until discharged.” She appeared on February 4 but the trial was not had and she was released. On April 24, 1974, she was again served with a subpoena and directed to report to the courthouse on May 20, and to “attend from day to day and from term to term until' discharged.” Mrs. Buskirk appeared at the designated time, but the case was not heard and she was told she would be notified when to be back in court. She was again summoned but the subpoena was not executed. The trial was set for August 26, 1974, and Mrs. Buskirk declined to attend, after which the contempt proceedings were had and resulted in the judgment stated.

The evidence fully justified the court in finding that Mrs. Buskirk demanded (but did not receive) $500 from someone interested in the trial for not appearing, and that she also knew when the trial was scheduled because she had talked to the sheriff who told her when to report. The court was fully justified in finding that she deliberately and wilfully refused to appear and testify.

The question to be answered is whether the case is controlled by Mississippi Code Annotated section 99-9-21 (1972), which provides in pertinent part that every witness summoned in a criminal case shall attend from day to day and from term to term without further notice until discharged, and in default thereof shall be fined not more than $500.

It is contended that this statute provides the only punishment that can be meted out in this case. We do not agree. Were this a case of inadvertent default on the part of a witness, or a case where a witness simply forgot to report to give testimony as he had been required by subpoena to do, then there might be some merit in the argument that punishment, if any, should be meted out under the aforementioned statute. But this is not a case of simple inadvertence or oversight of a defaulting witness. This is a case where a witness wilfully and deliberately refused to obey a court order for the purpose of impeding, embarrassing, obstructing, defeating or corrupting the administration of a court of justice. Accordingly, the trial court found, and we think rightfully so, that the witness’ actions constituted constructive contempt of court.

Contempt of court occurring while the court is not sitting is constructive contempt. The power of the court to punish for constructive contempt is inherent and implied in the judicial function; it is not derived from the statutes. Melvin v. State, 210 Miss. 132, 48 So.2d 856 (1950), suggestion of error overruled, 210 Miss. 134, 49 So.2d 837 (1951).

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.


author: GILLESPIE, Chief Justice:

text:
    LITTON SYSTEMS, INC. v. Renee BURROWS.
    No. 48925.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    White & Morse, Eldon L. Bolton, Jr., Gulfport, for appellant.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellee.
   ON MOTION

GILLESPIE, Chief Justice:

Appellant has filed a motion to strike appellee’s abridgment of the record and to require amended brief. The motion and brief show that an abridgment of the record was prepared and filed by appellant pursuant to the provisions of Supreme Court Rule 41. It is shown that, instead of pointing out wherein appellant’s abridgment was defective or insufficient and supplementing that abridgment wherein it was defective or insufficient, appellee filed a separate abridgment. The motion shows, and the appellee does not dispute, that she wrote her brief and made references to the pages of the abridgment prepared by her.

Neville v. Kelso, 242 So.2d 871 (Miss.1970), held that a motion to strike an abstract or abridgment of the record under Rule 41 would not lie and would not be considered by the Court. However, that case dealt with an abstract or abridgment prepared by appellant and not a counter abstract or abridgment prepared by appel-lee, as in this case. In Stevenson v. State, 312 So.2d 10 (Miss.1975), the Court ordered appellant to prepare and file a proper abstract and brief.

Supreme Court Rule 41 amply protects appellee by giving her the right to submit a supplemental abstract or abridgment in the event she determines that the abridgment filed by appellant in this case is defective or insufficient. In the absence of such finding by appellee and an affirmative showing wherein the abstract or abridgment prepared by appellant is defective or insufficient, appellee is not required by the rule, or should be permitted, to file a counter abstract or abridgment. Such duplication, as is present in this case, if permitted, would defeat the purposes for which Rule 41 was adopted. This fact is emphasized by appellee using her own abridgment for points of reference in her brief.

Since the adoption of Supreme Court Rule 41, and compliance therewith through the years, the Court has been impressed with the fact that in cases where abstracts or abridgments have been required, the attorneys for the parties have consistently shown greater concentration on the decisive issues involved in their cases. This improvement has resulted in better briefs and better oral arguments which have been of considerable benefit to the Court in reaching just results in those cases. For that reason the Court has recently amended Rule 41 to require an abstract or abridgment in all cases appealed to this Court wherein the record is filed on or after November 1, 1975.

The motion of appellant to strike the abstract or abridgment of record filed by ap-pellee is sustained, and the abridgment and brief filed by appellee are ordered to be returned to her attorney. Appellee is granted thirty (30) days from the date this opinion is i handed down within which to file a supplemental abstract or abridgment concerning any matter wherein she deems the abridgment prepared by appellant to be defective or insufficient and to prepare and refile her brief so as to refer to the abridgment of the record prepared by appellant and her supplemental abstract or abridgment, if any.

All Justices concur.


author: INZER, Justice.

text:
    Phillip Henry NEWTON et al. v. STATE of Mississippi.
    No. 48710.
    Supreme Court of Mississippi.
    Nov. 3, 1975.

      Ron J. Senko, Woodville, H. E. Horne, Jr., Centreville, for appellants.
    A. F. Summer, Atty. Gen., by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   INZER, Justice.

Appellants, Phillip Henry Newton, Willie James Noble and Johnny Lee Russ, were indicted, tried and convicted in'the Circuit Court of Wilkinson County, Mississippi, for the crime of burglary. Newton and Noble were sentenced to serve a term of four years in the State Penitentiary. Russ was sentenced to serve a term of five years. From these convictions and sentences they appeal. We affirm.

John Dorsey, a part-time police officer for the City of Woodville, Mississippi, testified that while making his “last check” around 5:15 a. m. on Sunday, June 9, 1974, he noticed a green 1967 Chevrolet with Adams County license plates parked behind Treppendahl’s Hardware Store. He subsequently noticed that a wooden board that covered one of the windows had been removed. Thereafter, he saw defendant, Newton, run from under the hedges by the store; Newton refused to stop when he fired a warning shot.

When the chief of police, James Foreman, investigated the burglary, he discovered a broken window on the north side of the building, and an open window in the storage room on the west side of the building. From the window in the storage room Chief Foreman lifted five latent fingerprints. Foreman was also informed by the store owner that three guns, several boxes of ammunition, an AM-FM stereo with speakers, and a small amount of change were missing from the store. The green 1967 Chevrolet initially noticed by Officer Dorsey was also found approximately two blocks from the scene of the burglary with several boxes of bullets in it. Foreman later discovered that the license plates on the car had been switched.

Around 9:30 a. m. that Sunday morning, Phillip Newton and Willie Noble appeared at the jail after being informed that the police were looking for them. At that time, they were arrested and charged with burglary. Johnny Russ was arrested and charged with burglary later that afternoon. All three defendants were advised of their constitutional right to have an attorney present during questioning. However, all three were interrogated and fingerprinted without the benefit of counsel. '

The defendants’ fingerprints and the latent fingerprints found at the scene of the crime were then sent to the Jackson Identification Bureau for comparison. Mr. Sam Ivy, Director of the Identification Bureau of the Mississippi Highway Patrol, testified that three of the five prints were so distorted that identification was not possible. However, he positively identified one print as that of the right middle finger of the defendant Russ, and the other print as that of the left index finger of defendant Noble.

At trial, defendant Newton testified that around 10:30 p. m. the night before the burglary, he and the other two defendants went to Natchez where they spent the entire night. He stated that the other two defendants had picked him up in the green Chevrolet that was in the possession of the police the next day, but that they had abandoned the car in Woodville before going to Natchez because the engine was running hot.

Defendants’ first assignment of error is that the trial judge erred in overruling their motion to quash the indictment and their motion to suppress evidence. The basis of the defendants’ motion was that they were not represented by counsel when fingerprinted, an alleged critical stage of the proceeding.

Law enforcement officials, however, have clear authority to take fingerprints of all persons arrested and charged with a crime pursuant to the laws of this State. See Section 99-15-13, Mississippi Code Annotated 1972.

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Court held that the right of an accused to have an attorney present during a critical stage of the prosecution did not extend to a step in the prosecution such as the gathering of evidence by the taking of fingerprints, blood samples, clothing or hair. Furthermore, we stated in Baylor v. State, 246 So.2d 516 (Miss.1971):

The Fifth Amendment privilege against self-incrimination protects an accused from being compelled to testify against himself, that is, to provide evidence of a testimonial or communicative nature, but does not extend to the securing of real or physical evidence. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California, supra, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
# * * * * *
The Sixth Amendment right to counsel is not violated by a failure to provide counsel at noncritical stages of an investigation such as are involved in scientific analysis of an accused’s fingerprints, blood sample, clothing, hair, etc. This view is supported by United States v. Wade, supra.
(246 So.2d at 519).

Clearly,-fingerprints are not testimonial evidence and therefore the taking of fingerprints is not a critical stage in the investigation that requires the presence of counsel.

The appellants next contend that the evidence was not sufficient to sustain conviction, and that the trial judge improperly denied their motion for a peremptory instruction. However, we stated in Fields v. State, 293 So.2d 430 (Miss.1974):

As to his request for a peremptory instruction, the rule is that when all the evidence on behalf of the state is taken as true, together with all sound and reasonable inferences that may be drawn therefrom, if there is enough evidence to support a verdict of conviction, the peremptory instruction should be denied. Cochran v. State, 278 So.2d 451 (Miss.1973).

(293 So.2d at 432).

Appellants complain that the only evidence introduced by the state to support a conviction was the fingerprints, and that these fingerprints were found on a window easily accessible to the public. However, the window on which the fingerprints were found was located approximately ten feet from the floor in a back storage room. Furthermore, Officer Dorsey testified he saw defendant Newton flee from the scene. Wesley Newton, Newton’s father, testified that on Saturday night before the burglary Newton left the house accompanied by the two other defendants. Newton himself admitted that he and the two other defendants had been in the green Chevrolet in which some of the stolen property was later found. In the face of this evidence, the request for a peremptory instruction was properly denied.

'The record in this case reveals that the crime for which the appellants were convicted was committed, and the evidence fully supports the verdict of the jury that the appellants committed the crime. Accordingly, for the reasons stated, this case must be and is affirmed.

Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.


author: SUGG, Justice:

text:
    Tommy EDWARDS et al. v. Mrs. Ina McIntyre HARPER et al.
    No. 47959.
    Supreme Court of Mississippi.
    Nov. 3, 1975.

      Johnston & Adams, Brandon, for appellants.
    McLaurin & Nicols, Brandon, for appel-lees.
    Before RODGERS, SMITH and SUGG, JJ-
   SUGG, Justice:

Complainants filed a bill to confirm title to seventy-five acres of 16th Section land located in Rankin County, within the corporate limits of the City of Brandon, under the provisions of Mississippi Code Annotated section 29-3-103 (1972).

Exhibit “A” annexed to the bill of complaint is the application of F. L. Harper for a ninety-nine year extension of existing 16th Section leases on property described in paragraph three of the bill of complaint. The application of Harper alleged that he held the land under two leases for a period of twenty-five years each, one from October 10, 1932, the other from December 8, 1936. Neither of the leases had expired when the application for extension was filed.

F. L. Harper died testate and devised his leasehold interest in the seventy five acres to Mrs. Ina McIntyre Harper who later conveyed an undivided one-half interest to Maxine Harper Carr, Orville Earl Harper and Dale Lamar Harper. Mrs. Harper and her grantees, as complainants, named the President of the Board of Supervisors of Rankin County as defendant. The record does not show when the bill of complaint was filed, but it was sworn to on October 15, 1973. On October 20, 1973, the chancellor issued a fiat setting the cause for hearing at 9:00 a. m. on November 2, 1973.

On October 23, 1973, Tommy Edwards, one of the appellants, filed a petition to intervene in the case. Edwards alleged that the 1946 lease granted F. L. Harper was void for failure to comply with statutory requirements and that the property was worth in excess of $75,000 at the present market value. On November 3, 1973, James O. Ryals, Jr. and Joseph S. Donnell filed a petition to join in the petition to intervene previously filed by Tommy Edwards. On the same date complainants demurred to the petition to intervene and the chancellor entered an order denying intervention by Tommy Edwards. By separate order, the petition of Ryals and Donnell to join in the petition to intervene filed by Tommy Edwards was denied. We affirm the chancellor’s ruling for the reason that the petition to intervene filed by Tommy Edwards did not state a cause of action.

On November 2, 1973, Tommy Edwards, James O. Ryals, Jr. and Joseph S. Donnell filed, in the same cause, a petition to set aside the lease. The petition was filed on behalf of the public and all other taxpayers of Rankin County were invited to join. They alleged that the petition was filed because of the failure of the public officials of Rankin County, Mississippi, specifically the President of the Board of Supervisors, to file an answer to the original bill of complaint of Mrs. Harper, et al.

On November 2, 1973, complainants demurred to the petition of Edwards, et al, and assigned the following grounds: (1) There is no equity on the face of the petition, (2) the petitioners are not parties in the original bill to confirm title and cannot inject themselves into the case, (3) the petition fails to state a cause of action, and (4)other causes to be shown at the hearing.

The first and third grounds of the demurrer raised questions which are properly the subject of a general demurrer, while the second ground assigned is the subject of a special demurrer. In Griffith’s Mississippi Chancery Practice § 294 at 278-79 (2nd ed. 1950), the author states:

The general demurrer being, then, one which comprehensively goes to the whole bill, and which of necessity therefore must be treated throughout as an entirety, so that if the bill be good or maintainable in any part or in any respect such a demurrer must be entirely overruled, it follows as a logical consequence that grounds of demurrer which go to form only, or only to a part of a bill, or only to some particular phase of it, or which raise some secondary or affirmative defense, — that is to say, grounds which belongs to a special and not to a general demurrer, — should not be inserted in a general demurrer, and if so done, such latter grounds must necessarily be disregarded, and that is exactly what our cases hold, that is to say, where there are several grounds of demurrer and one of them goes to the whole bill in its primary aspects and is determinative of the whole case, the court will consider only that one ground and will pass or disregard all the others, and if the single ground going to the whole primary case be not good, the whole demurrer will be overruled, regardless of the fact that if some of the other grounds had been set up in a separate special demurrer they might have been sustained. Matters therefore which constitute the subject of a special demurrer must not be set up in a general demurrer. If both kinds of grounds are desired to be urged at the same time two demurrers may be filed, one a general demurrer and the other a special demurrer, but they cannot ordinarily go in the same pleading.

The demurrer should have been overruled because the petition to set aside the lease stated a cause of action sufficient to withstand a general demurrer. Appellants alleged that, at the time of the execution of the lease to Harper in 1946, the land had a fair market value of $22,500, and the ground rental for the ninety nine year period of $400 was so grossly inadequate as to render the lease a donation in violation of Article IV, Section 95 of the Mississippi Constitution of 1890. We have held in two recent cases that 16th Section lands are held in trust and are the proper subject of taxpayer suits. Keys v. Carter, Miss., 318 So.2d 862 (decided September 29, 1975); Holmes v. Jones, Miss., 318 So.2d 865 (decided September 29,1975).

The court did not give a reason for sustaining the demurrer; therefore, we can only surmise that the chancellor sustained the demurrer because of the third ground assigned. Parties may not intervene in cases except on formal order of the court unless they are recognized as parties by the others. However, if a special demurrer had been filed on the ground that appellants had not been admitted by an order of the court, and such demurrer sustained, appellants could then have filed a proper application for an order admitting them as parties.

The rule governing applications to intervene is succinctly stated in Griffith’s Mississippi Chancery Practice § 411 at 402 (2nd ed. 1950), as follows:

Applications to intervene must be made with due diligence, all the circumstances considered; and an intervention should not be allowed if it would operate necessarily to seriously retard the principal suit, more especially if the interests of the applicant may be protected by the final decree in the cause as it stands, from which it follows that the petition is not to be allowed at all in any case when the decrees, orders or process in the original suit will not cause the proposed interve-nor either to gain or to lose by their direct legal operation and effect. The petition must show, by positive and concise averment, the material facts whereby the rights of the applicant are involved, what those rights are, and the relief to which he deems himself entitled. . . .

Measured by the above rule, appellants, as taxpayers, should be admitted as parties. The original suit was a bill to confirm title to a 16th Section lease; appellants were not dilatory in filing their petition to set aside the lease, and the interest of the appellants and other taxpayers could not be protected by a final decree confirming title in complainants to the leasehold interest in the lands involved. Appellants were not injecting new issues into the case, but were contending that the consideration paid for the lease was so inadequate that it amounted to a donation. On remand, the trial court should admit appellants as parties by formal order.

The fourth ground of the demurrer should not have been reached by the court because it does not state a ground for demurrer. In Griffith’s Mississippi Chancery Practice § 302 at 289 (2d ed. 1950), we find the following:

[I]t is therefore a useless and futile thing to add to a demurrer, as is so often seen, the ground or statement “for other causes to be shown on the hearing.” Not only so, because our court has in effect so held, but because moreover the statute already cited requires the demurrer to be certified by the solicitor who prefers it. A certificate of an unassigned ground would be anomalous, if not an absurdity.

This case is therefore reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GILLESPIE, C. J., and PATTERSON, INZER, ROBERTSON, WALKER and BROOM, JJ., concur.


author: RODGERS, Presiding Justice.

text:
    Charles L. NAUSE v. Ellen GOLDMAN.
    No. 48409.
    Supreme Court of Mississippi.
    Nov. 3, 1975.

      Michael R. Medley, W. F. Selph, Jr., Jackson, for appellant.
    Allan D. Shackelford, Clarksdale, for ap-pellee.
    Before RODGERS, PATTERSON and SUGG, JJ.
   RODGERS, Presiding Justice.

This is an appeal from a final judgment sustaining a demurrer to ,a declaration filed by the appellant in the Circuit Court of Quitman County, Mississippi, dismissing the plaintiff’s action.

The only issue presented to this Court for determination is whether or not the demurrer was wrongfully sustained by the trial court.

The declaration filed by the plaintiff charges that numerous lawsuits were filed against the plaintiff during 1972, and that at that time he had other attorneys representing him. Some of these lawsuits were settled at a discount of 19.2% of the face value of the notes.

The declaration alleged that there were twenty-one (21) suits on notes filed against the plaintiff for one hundred thousand one hundred and seven dollars and ninety-eight cents ($100,107.98) all on unsecured notes, except four notes in the sum of thirty-three thousand four hundred sixty-eight dollars and twenty-four cents ($33,468.24); that plaintiff’s wife was also a defendant on one note for three hundred ninety-two dollars and ten cents ($392.10) ; that the defendant represented plaintiff’s wife; and that in order that one attorney should represent plaintiff as well as his wife, plaintiff terminated the employment of his former attorneys and employed the defendant Ellen Goldman to also represent him. It was further alleged that the attorney entered into negotiations for the plaintiff in these suits with First National Bank, and later informed the plaintiff that she could settle these claims for $100,107.-98, the face value of the notes. Plaintiff authorized the settlement for this sum, but the following day the defendant attorney presented the plaintiff with one note due in six months to be signed by plaintiff, together with a deed of trust on property of the plaintiff to secure the note. It is said that the defendant represented to the plaintiff that this note would settle all the claims the bank had against the plaintiff, and that these claims would be dismissed for the sum of one hundred twenty-two thousand two hundred fifty-eight dollars and ninety-six cents ($122,258.96). This sum was twenty-two thousand one hundred fifty dollars and ninety-eight cents ($22,150.98) more than the amount for which plaintiff had authorized the defendant to settle the claims, and the plaintiff believes that this sum was for attorneys’ fees for the bank’s attorneys.

It was also alleged that — as a matter of fact — the defendant had allowed default judgments on all the suits filed by the bank, although the claims had been previously settled. Plaintiff dismissed the defendant attorney and reemployed his former attorneys who promptly settled the claims for one hundred ten thousand eight hundred and eleven dollars ($110,811.00). This was eleven thousand four hundred forty-seven dollars and ninety-six cents ($11,447.96) less than the amount suggested by the defendant. It is then alleged that the “plaintiff verily believes that but for the negligence, errors and omissions committed by the defendant . . . the claims could have been settled for approximately the rate at which the Deposit Guaranty National Bank claims were settled, at a 19.2% reduction of the face value of the notes, or $80,887.¿5 . . . . ” It was then alleged that the plaintiff was damaged in the amount of twenty-nine thousand nine hundred twenty-three dollars and seventy-five cents ($29,923.75).

It was also alleged that (a) thereafter the bank sued him for six hundred fifty-nine dollars and twenty-five cents ($659.-25) due by him on a Master Charge account, which was not settled at the time the settlement was made due to the negligence of the defendant, and (b) while the defendant represented the plaintiff, the Hinds-Rankin Metropolitan Water and Sewer Association sued the plaintiff and during settlement negotiations, the defendant “made various statements . . .of such a nature as necessarily result [sic] in extreme prejudice to the rights of plaintiff herein, and did in fact, ultimately result in the original suit for approximately $67,000.00 being finally settled for $70,000.-00, that plaintiff herein verily believes that but for the negligence, errors and omissions of the defendant . . . the original suit . . . could have been settled for $40,000.00 . . . representing an increase of $30,000.00 . . . ” of which the plaintiff was required to pay $12,500.-00.

The plaintiff goes on in his declaration to say that the gross negligence of the defendant required him “to heavily encumber property owned by him to such an extent and degree that he is daily faced with the prospects of losing his property due to the acts of gross and reckless negligence on the part of Defendant . . . .”

The plaintiff then prayed judgment against the defendant in the sum of one hundred three thousand one hundred seventy-seven dollars and fifty cents ($103,177.50) actual and punitive damages.

The defendant filed a motion requesting the court to require the plaintiff to make his declaration more specific as to the acts of negligence alleged in each paragraph, and the specific elements of damages claimed. This motion was sustained, and the plaintiff answered and said that the specific words used by the defendant which caused the water and sewer association to claim and demand one hundred fifty thousand dollars ($150,000.00) instead of sixty-seven thousand dollars ($67,000.00) originally sued on were “She wished to sell plaintiff’s house and all of his property in Madison County and give the money to. Hinds-Rankin Metropolitan Water & Sewer Association, Inc.” The appellant also alleged that the defendant required the plaintiff to consent and submit to numerous default judgments in spite of a new negotiable note executed by the plaintiff which included an attorney’s fee of twenty thousand dollars ($20,000.00). Then, it is said that because of the negligence of the defendant, the plaintiff was forced to secure a deed of trust in the sum of two hundred and fifteen thousand dollars ($215,000.00) on property in Madison County and another on a residence in Hinds County. The plaintiff then details various items of damages he had to pay because the defendant did not settle lawsuits at a sum for which plaintiff thought the defendant should have settled the claims.

The appellee filed a demurrer to the amended declaration upon the premise that the declaration stated no cause of action against the defendant. The demurrer was sustained, and the plaintiff appealed to this Court from a final judgment dismissing plaintiff’s case upon his failure to amend his declaration.

Appellant now contends that the declaration against the defendant did state a cause of action and in support thereof, he cites the case of Thompson v. Erving’s Hatcheries, Inc., 186 So.2d 756 (Miss.1966), wherein this Court quoted from 7 Am.Jur. 2d Attorneys at Law § 188, at 156 (1963), as follows:

“In an action against an attorney for negligence or violation of duty, the client has the burden of proving the existence of the relation of attorney and client, the acts constituting the alleged negligence, that the negligence was the proximate cause of the injury, and the fact and extent of the injury alleged.” 186 So.2d at 759 (Miss.1966).

The appellant argues that he alleged the essentials required (1) that the defendant was employed as his attorney; (2) that she was negligent in that she could have settled claims filed against the appellant for a less sum than was agreed upon; (3) that part of the settlement was for attorney’s fees to the claimant’s attorney; (4) that she permitted default judgments on claims then in the process of being settled, and (5) that she said the appellant would sell certain property in Madison County and pay it to a claimant in that county.

It is said by the appellee that the trial judge sustained the demurrer because the plaintiff did not allege that he had a valid defense to the claims settled by the appel-lee. It is apparent to us, however, that the appellant had no defense to the various notes and claims. In fact, the appellant must have owed the claims because he agreed to the various settlements, although they were not as little as he desired.

It is said in 7 C.J.S. Attorney and Client § 146, at 983 (1937) :

“An attorney is not liable for negligence in the conduct of litigation where, notwithstanding such negligence in the prosecution or defense of a suit, the client has no cause of action or meritorious defense as the case may be.”

This rule has been adopted in this state beginning with Grayson v. Wilkinson, 5 Smedes & M. (13 Miss.) 268 (1845), and in the following cases: Hoover v. Shackelford, 23 Miss. 520 (1852), and Thompson v. Erving’s Hatcheries, Inc., 186 So.2d 756 (Miss.1966).

In the Thompson case, supra, this Court quoted from Annot., 45 A.L.R.2d § 5, at 19 (1956), as follows :

“ ‘The ordinary rule that negligence is actionable only where it is the proximate cause of the damages complained of has frequently been applied in actions against attorneys for alleged negligence' in connection with litigation. In such cases the damages claimed are usually the value of the claim lost or judgment suffered as an alleged result of the attorney’s negligence, and it has frequently been held that the lawyer may not be found liable unless it appears that if the action had been properly prosecuted or defended the client would have been successful.’ ” 186 So.2d at 759.

It was also pointed out in Thompson that Dean John W. Wade of the Vanderbilt University School of Law made an exhaustive research into the question of an attorney’s liability for negligence, and came to the conclusion that:

“ ‘There has been universal agreement that a lawyer is not an insurer or guarantor of the correctness of his work or of the result which will be attained. He is liable only for negligent failure to use the requisite care or skill.’ ” 186 So.2d at 758.

It has been said by at least one text writer that attorneys are held to the same rule of liability for want of professional skill and diligence in practice and for erroneous or negligent advice as doctors, surgeons and other experts in their respective trades. An attorney is liable for any misfeasance or unreasonable neglect whereby his client suffers loss. However, an attorney is not bound to exercise extraordinary diligence, but only reasonable care and skill considering the business undertaken. “He is not answerable for every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge, or with at least reasonable skill and learning and an ordinary degree of attention or care.” 5 Am. Jur. Attorney at Law § 125, at 335 (1936).

From the facts alleged in the declaration in this case it is not shown that the defendant attorney caused the plaintiff to pay money he did not owe, but, rather, that some other attorney could have settled the amount owed by the plaintiff for less than the appellee settled the claims.

We agree with the trial court that the declaration does not sufficiently allege loss as a result of the alleged negligence of the appellee; nor do we find that the alleged statement made to the counsel for the Hinds-Rankin Metropolitan Water & Sewer Association, Inc., that “She wished to sell plaintiff’s house and all of his property in Madison County and give the money to . . . [them] in order to stop the lawsuit” was sufficient to show actionable negligence on the part of the defendant attorney. Attorneys are required to discuss their clients’ cases with adversary attorneys when they are attempting to make a settlement of a claim, and if they act in good faith, they are not liable for every statement made as if they were insurers.

We are of the opinion that the trial court acted properly in sustaining the demurrer.

The judgment of the trial court is therefore affirmed.

Affirmed.

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


text:
    Gerold E. HAYNES v. William DENTON.
    No. 47567.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    Jean D. Muirhead, Jackson, for appellant.
    Simrall, Aultman & Pope, J. B. Van Slyke, Jr., Hattiesburg, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   Affirmed.