author: BROOM, Justice, for the Court: INZER, Presiding Justice

text:
    Albert NECAISE et al. v. Floyd J. LOGAN, Circuit Judge.
    No. 48903.
    Supreme Court of Mississippi.
    Nov. 9, 1976.
    Rehearing Denied Jan. 26, 1977.

      Joe Sam Owen, Gulfport, for appellants.
    D. Knox White, Gulfport, Clyde Hurlbert, Biloxi, for appellee and amicus curiae.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   BROOM, Justice, for the Court:

In his supplemental grand jury charge, a circuit judge stated he had reports that the district attorney “has . . . failed to investigate and prosecute . . . During further investigative grand jury sessions, the district attorney and his assistants (appellants) were by order of the judge “barred from the Grand Jury room.” Appellants then filed motions requesting that the judge (the Honorable Floyd J. Logan): (1) expunge a portion of his supplemental grand jury charge; and (2) set aside his order barring appellants from grand jury sessions. This appeal is from denial of the motions. We reverse.

The controversy began on April 29, 1975, when the judge delivered his written supplemental grand jury charge (appellants’ uncontradicted initial pleading in this cause states that the “charge was read” to the grand jury) during the April 1975 Term of Harrison County Circuit Court, First Judicial District. After being previously empaneled, the grand jury was apparently in recess for a time and then reconvened. In his supplemental charge the judge stated that it is a “violation of the law for any public official . . . not to investigate” matters which merit investigation. This was followed by language that citizens had reported to the court that the district attorney had “failed to investigate and prosecute ..” The grand jurors were further charged that if they should “determine that the District Attorney has actively delayed investigation of these matters, you may apply to the Court for further instructions ..” Appellants contend that the charge singled them out as targets for grand jury action. Citing Mississippi Code Annotated § 13-5^47 (1972), they argue that the supplemental charge as given was improper.

On May 7, 1975, appellants’ motions (to expunge, etc.) were heard and denied. In his opinion the trial judge, referring to several undisclosed sources, stated that information had been given to him that the district attorney’s office had refused to investigate several charges of criminal misconduct although a prima facie case had been presented to them. The court held that in his charge he merely informed the members of the grand jury that certain matters had been brought to his attention, and that he failed to make any specific accusation against appellants. In his opinion the judge also stated that in view of a possible conflict of interest regarding the district attorney, he had asked the county attorney to advise the grand jury pursuant to the authority of Mississippi Code Annotated § 19-23-11 (1972), which provides “. . .It shall be the duty of the county prosecuting attorney to represent the state in all matters coming before the grand jury of his county . . .”

Argument is made that the trial judge erred in his refusal to strike or expunge his supplemental grand jury charge. Immediately there arises the threshold query: Is a circuit judge’s charge to a grand jury subject to appellate review and expungement? Resolution of this question requires consideration of the exact nature of the relationship which exists between a circuit judge and a grand jury and the scope of his authority over that body. The particular part of the supplemental charge which is in controversy reads as follows:

The citizens who have requested that you investigate certain matters have represented to the Court that the District Attorney has for a considerable period of time failed and refused to prosecute and investigate these matters. If as a result of your investigations you determine that indictments should be returned, and you further determine that the District Attorney has actively delayed investigation of these matters, you may apply to the Court for further instructions as to the applicable law.

District Attorney Necaise and his assistants contend that the supplemental charge, and the quoted language in particular, was improper. To the contrary, amicus curiae on behalf of the circuit judge argue that the language complained of merely informed the grand jury of the law regarding public officials pursuant to § 13-5-47, supra, and Section 175 of the Mississippi Constitution of 1890.

Blau v. State, 82 Miss. 514, 34 So. 153 (1903), applies here, as does Fuller v. State, 85 Miss. 199, 37 So. 749 (1904). In Fuller the defendant filed a motion to quash the indictment because in making his charge to the grand jury the trial judge asked: “Have you never heard the name of Charlie Fuller?” In reiterating the rule announced in Blau, supra, the court held:

By section 2373, Code 1892 [now § 13-5-47], it is made mandatory for the circuit judge to charge the grand jury concerning its duties and to explain the law to it as he shall deem proper. . . . It is the province of the circuit judge and his duty to inveigh against crime of all kinds and in every quarter, but it is a usurpation of power to denounce individuals, or to specifically direct the attention of the grand jury to any named person. . It is no reply to this conclusion to say that the words as quoted in the motion to quash are not of themselves either denun-ciatory or accusatory of the person named. We must view this matter in a reasonable way. . . . (Emphasis added.) (85 Miss. at 203-205; 37 So. at 750-751).

Accordingly, we have viewed the supplemental charge given in this case in a reasonable way. Our conclusion is that the charge effectively singled out the district attorney’s office and the district attorney himself. Though no one’s name was used, as a practical matter there is no question but that the charge targeted the appellants.

In the case sub judice, the trial judge charged the grand jury that citizens had “represented to the Court” that the district attorney had “failed and refused to prosecute and investigate . . ..” Clearly, under the rationale of Blau, supra, and Fuller, supra, had an indictment been returned against the district attorney, a motion to quash would rightly have been sustained. Regardless of the fact that no indictment was returned, and though rectitude and love of justice motivated the judge’s remarks, his charge as delivered was in excess of his authority. Although circuit judges have broad judicial discretion in structuring and delivering grand jury charges, expungement should have been granted upon the record of this most unusual case. Re: Petition of Russell D. Moore, III, to Expunge Part of a Grand Jury Report, 336 So.2d 736, decided August 17, 1976; In re Davis, 257 So.2d 884 (Miss.1972). This court is not saying that the district attorney or anyone else can muzzle or hold veto power over remarks made by a circuit judge in charging a grand jury. We simply hold that remarks made by a circuit judge in such a charge may be reviewable and subject to expungement if the judge exceeds his authority and inappropriately targets an individual. In this particular case the judge’s charge, which in effect singled out the district attorney, went too far and should be expunged.

Argument is also made by the appellants that the circuit judge erroneously barred them from grand jury sessions. Pertinent is Mississippi Code Annotated § 25-31-13 (1972), which provides:

The district attorney shall attend . the grand jury whenever he may be required by the grand jury (Emphasis added).

This statute gives to the grand jury the power and authority at its discretion to require the presence and counsel of the district attorney “whenever ... required” during its deliberations. It follows that the circuit judge (acting unilaterally in ex parte fashion without notice to the district attorney, and without request of the grand jury) lacked authority to bar the district attorney or his assistants from the grand jury hearing.

Although other propositions were urged by the appellants, our decision as to ex-pungement and barring appellants from the grand jury sessions is dispositive of the entire matter. Judgment will be entered here ordering: (1) expungement of those portions of the charge which improperly refer to the district attorney and his assistants, and (2) vacation of the order which barred the appellants from the grand jury room.

The case was considered by a conference of the Judges en banc.

REVERSED AND RENDERED.

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

INZER, P. J., and SUGG, J., dissent.

WALKER, J., took no part.

INZER, Presiding Justice

(dissenting):

I am compelled to dissent when this Court establishes precedent that, in my opinion, is not only wrong, but also invites unnecessary litigation. The holding in this case opens the door for needless litigation because any person feeling aggrieved at something said by the circuit judge in charging the grand jury may file a petition to have the remarks expunged, although such person was not indicted by the grand jury. After a diligent search I have been unable to find any case ever decided by any appellate court which holds that a judge’s charge to the grand jury is subject to review where the person complaining was not indicted by the grand jury. It is only when a person has been indicted by the grand jury that he can complain of a prejudicial charge and that is done by a motion to quash. In Blau v. State, 82 Miss. 514, 34 So. 153 (1903), and Fuller v. State, 85 Miss. 199, 37 So. 749 (1905), cited and relied on in the majority opinion, are cases involving motions to quash indictments returned by the grand jury. In Fuller, this Court stated:

The circuit judge is vested with power to specifically call the attention of grand jurors to all statutes which the public interest may require shall be brought to the consideration of the grand jury. This grant of power carries with it the authority to decide what class of offenses the public interest demands shall receive special attention by the grand jury. And in deciding this the circuit judge must necessarily be guided, to a great extent, by his knowledge of the social conditions as they exist in each county at the time when the grand jury is impaneled therein. Those statutes which may be most flagrantly and openly violated in one county of his judicial district may be strictly observed in another, and the same offense which is conspicuous for its presence in some communities may be equally as conspicuous for its absence in others. It would be folly to hold that a circuit judge should not be permitted to charge the grand jury in reference to a particular class of crimes, for the reason that such charge might have the effect of directing the attention of the grand jury to the individuals who are guilty of the crimes. In truth, this is the object at which the charge to the grand jury Is aimed, the purpose which it hopes to effect. The circuit judge being a conservator of the peace, and, in the discharge of his duty, having the peace and quiet of the entire district much at heart, being well advised as to the conditions existing in every locality within his district, his charge to the grand jury is intended to direct their deliberations into the channel which will result in the greatest good to the people of the entire county where the grand jury is impaneled. (Emphasis added).
(85 Miss. at 203, 204, 37 So. at 750).

It is only when an utterance in the charge by the circuit judge is prejudicial to a person indicted will an appellate court review the charge. In Blau, supra, this Court found from the facts of that case that the trial judge coerced the grand jury to indict Blau, but stated that the Court will not undertake to control the discretion of the court in charging the grand jury unless that discretion has been manifestly abused.

The Alabama Court in Carr v. State, 28 Ala.App. 466, 187 So. 252 (1939), stated the rule as follows:

In charging a Grand Jury a very large discretion must be left to the trial judge, and it is within his prerogative to call attention to any unusual state, or condition, affecting the general welfare in the County, where the Grand Jury is charged with the investigation of all violations of the criminal law.
The Grand Jury is the inquisitorial body of the County, drawn and summoned from among its best citizens, who, under the direction of the Presiding Judge, must make investigations of all violations of law, making presentments in accordance with such investigation to the court.
A very large discretion is conferred upon the Presiding Judge in respect to these things, and no appellate court will undertake to control it, unless such instructions refer directly to the crime being charged in the indictment and then on trial. Blau v. State, 82 Miss. 514, 34 So. 153. (Emphasis added) (187 So. at 253).

See also, Bethel v. State, 162 Ark. 76, 257 S.W. 740 (1924).

Since the majority in effect holds that the circuit judge was guilty of manifest abuse of his discretion in making the supplemental grand jury charge, it is proper that his opinion in overruling the petition to expunge be considered. It states in part as follows:

It is the petitioners’ position that the Court acted wrongfully or illegally in giving the portion of the grand jury charge objected to in the Amended Petition. In order to make a complete record of the Court’s actions, a copy of the Court’s initial charge delivered on April 14, 1975, will be attached to these written findings as Exhibit “A”.
A certified Copy of the Court’s supplemental charge delivered to the Grand Jury on April 29, 1975, will also be attached to these findings as Exhibit “B”.
The first paragraph of the Court’s supplemental charge which was objected to by the Petitioners, reads as follows:
Certain citizens who appeared before you have been informed by you that the matters which they requested be investigated would be delayed to a later grand jury. The citizens have informed this Court that the matters they wished investigated have been delayed presentation before a number of grand juries. These citizens have now requested the aid of the Court in having these matters presented to the grand jury. The Court, therefore, instructs you that you are bound by your oath to investigate these matters if it reasonably appears you can do so. In so instructing you, the Court is simply reminding you of your duty to investigate without delay those matters brought before you. This Court by so doing expresses no opinion or position as to what disposition you should make of the matters you investigate. You should make your decision on the facts and evidence as they are presented to you.

The facts dictating that portion of the charge by the Court were as follows: The Court was informed by an agent of the Mississippi Coast Crime Commission that repeated requests had been made to the District Attorney’s office to investigate certain alleged crimes. The requests had been repeatedly made in writing to Mr. Albert Necaise with no written response being received. Oral responses were made, which indicated that an investigation would be made. The Court was also informed that Albert Necaise, prior to becoming District Attorney, had represented in Federal Court those parties about whom investigation was requested during the period when the alleged crimes occurred.

Two members of the Bar who had represented clients who were victims of the alleged criminal misconduct had also requested investigation. They stated that evidence contained in certain public court files was sufficient to make out a prima facie case of criminal misconduct.

The Agent of the Crime Commission further expressed to the Court his concern that the cases would become stale and not be prosecuted. He stated that he had made a request to the April 1975 Special Grand Jury that the matters be investigated. He was informed that the matters would have to be considered by a subsequent grand jury. He then requested the Court that the matters immediately become investigated due to the considerable time which had passed since the District Attorney’s office had been informed of the cases, a period of almost two years. He informed the Court that his dealings with the District Attorney’s office indicated that the cases were either wilfully or neglectfully not being investigated.

Section 19-23-11 of the Mississippi Code of 1972 provides in its pertinent parts that “it shall be the duty of the County Prosecuting Attorney to represent the state in all matters coming before the grand jury of his county.” Section 25-31 — 13 of the Mississippi Code of 1972 makes it the duty of the district attorney to attend the deliberations of the grand jury “whenever he may be required by the grand jury.” In construing the above provisions the Court notes that the duty of the county attorney to attend the grand jury is prescribed by the mandatory term “shall” while the presence of the district attorney is necessary only “if required.”

The Court, in view of a possible conflict of interest due to prior representation of persons to be investigated by the grand jury, and further considering the alleged neglect or the failure to prosecute, requested the County Attorney to attend the grand jury. He agreed to do so.

Since the conduct of the district attorney’s office was being considered by the grand jury, it was necessary for the Court to bar the district attorney and his assistants from the grand jury room during the consideration of those matters. No person who is being investigated by a grand jury has a right to appear before it unless the grand jury requests it. The county attorney informed the grand jury that they had the right to request the presence of the district attorney or his associates, despite the Court’s order.

The portion of the Court’s charge which dealt with these matters is as follows:

“It is a violation of the law for any public official or private citizen to attempt to influence you not to investigate any matter which reasonably appears to merit investigation. The citizens who have requested that you investigate certain matters have represented to the Court that the district attorney has for a considerable period of time failed and refused to prosecute and investigate these matters. If, as a result of your investigation, you determine that indictments should be returned, and you further determine that the district attorney has actively delayed investigation of these matters, you may apply to the Court for further instructions as to the applicable law.
It is of prime importance to note that the Court has not accused the district attorney or any of his assistants of any violation of the law in the above charge. It merely informed the grand jury that matters have been brought to the Court’s attention which may merit investigation should they find indictments in the alleged delayed cases. No charge of wrongdoing was made as coming from this Court, and no such inference can reasonably be drawn from the language of the court.
Nowhere in the Court’s charge was there a reference to a particular case or persons involved in alleged criminal activity. The Court has not and will not at this time express any opinion as to the diligence of the district attorney’s office in any of the cases considered by the grand jury.
Section 13-5-47 of the Mississippi Code of 1972 requires that the Court charge the grand jury concerning its duties and expound the law to it. That same section requires the Court to instruct the grand jury concerning the laws defining the duties of public officers. The Court has, therefore, in accordance with the law, submitted a matter to the grand jury for their consideration and charged them as to the law. In doing so, I again reiterate the Court expressed no position as to the truth or falsity of the allegations made.
The matter was, therefore, one solely for the grand jury’s determination. The Court has further diligently considered the grand jury’s final report, a copy of which is attached hereto as Exhibit “C”. The Court can find nothing within the terms of this report which in any way makes any determination that the district attorney’s office is guilty of any misconduct. The Court believes that this fact distinguishes those cases cited by the district attorney in support of their petition to expunge.
Petitioners have further complained that the Court allowed its supplemental charge to the grand jury to be released to the news media. Grand jury charges are delivered in open court and of necessity are public information. Since grand juries have been charged by the Court, these charges have been public information. This contention is therefore without merit.

In the light of the facts revealed by the opinion of the trial judge, which are to be accorded verity, I am unable to say that the trial judge abused his discretion or to see how the district attorney was prejudiced by the remarks of the trial court. The grand jury did not indict him, or criticize him in its report. It in effect exonerated him of any inference of wrongdoing, and this Court should refrain from delving into a question that is now moot.

Insofar as the order barring the district attorney and his assistants from the grand jury room is concerned, the record reveals that while the grand jury was in session it was informed that if it was their desire to have the assistance of the district attorney, the order barring him from the grand jury room would be modified. The powers and duties of the district attorney with reference to the grand jury rise no higher than advising the grand jury on matters of law. The district attorney is not allowed to be present during deliberations of the grand jury and cannot attempt to influence them in their consideration of indictments except to give advice as to matters of law. In fact, he has no duty in regard to the grand jury unless requested by the grand jury. See Section 25-31-13, Mississippi Code 1972 Annotated.

Furthermore, the order barring the district attorney from the grand jury room expired when the grand jury adjourned and is now a moot question. But it certainly could reasonably be said that the circuit judge was justified in restricting the district attorney and his staff from the grand jury room. Surely, this Court does not intend to hold that the circuit judge does not have the power to bar the district attorney or any other official from the grand jury room when such person’s official conduct is subject to an investigation by the grand jury. One would think that when a district attorney knows that his official conduct may be the subject of an investigation by a grand jury, he would request the court to relieve him of his duty to advise the grand jury during such investigation. It is unfortunate that this Court has allowed itself to be injected into the controversy, but since it has, I would dispose of this case by simply holding that this Court will not and should not attempt to supervise the discretion of a circuit judge in charging a grand jury or his control over the grand jury and we will only review such actions when the person complaining has been indicted as a result of his actions in that regard.

SUGG, J., joins in this dissent.

      . No cited statute would require that grand jury charges be delivered in writing. Mississippi Code Annotated § 13-5-47 (1972) provides that the judge in certain instances may have the circuit clerk “read the charge ... to the grand jury . . ..” In practice, grand jury charges are usually delivered orally by the judge. A part of the record in this cause is a copy of judge’s charge to the grand jury when initially empaneled on April 14, 1975.

      . Miss.Code Ann. § 25-31-21 (1972), is not cited or relied on in this case. That section provides for pro tempore appointment of an attorney to act for the state when the district attorney is disqualified, etc. This statute does not say that the district attorney may be held “disqualified” and removed summarily or in ex parte fashion.


source: Caselaw Access Project

author: SUGG, Justice, for the Court:

license: Public Domain

text:
    SAVE THE BAY, INC., et al. v. MISSISSIPPI AIR AND WATER POLLUTION CONTROL COMMISSION.
    No. 49509.
    Supreme Court of Mississippi.
    Nov. 23, 1976.
    Rehearing Denied Jan. 26, 1977.
    Robert 0. Homes, Jr., Long Beach, and Metairie, La., for appellants.
    • J. Boyce Holleman, Gulfport, for appel-lee.
    Before GILLESPIE, C. J., and SMITH and SUGG, JJ.
   SUGG, Justice, for the Court:

The Chancery Court of the First Judicial District of Harrison County affirmed the issuance of air emission and waste water discharge permits by the Mississippi Air and Water Pollution Control Commission. This appeal involves the construction of the Mississippi Air and Water Pollution Control Law, Mississippi Code Annotated sections 49-17-1 to -43 (Supp.1976) and more particularly the right of aggrieved parties, other than permit applicants or holders, to a hearing and an appeal under section 49-17-41 (hereafter section 41).

E. I. DuPont de Nemours and Company filed an application to discharge waste water in accordance with the National Pollutant Discharge Elimination System into the St. Louis Bay and also for a permit for the operation of air emissions equipment. Both applications pertained to a plant DuPont proposed to construct at DeLisle, Mississippi. The air emission permit was issued by the Permit Board on April 5, 1974, and the waste water discharge permit on February 3, 1975.

After the application for the waste water permit was filed by DuPont an intensive investigation was conducted by the Permit Board of the Commission, including a public hearing on December 30, 1974. The notice of the public hearing stated that the Permit Board proposed to issue a permit to discharge waste water subject to specific pollutant limitations and special conditions. It invited persons wishing to comment upon the proposed determinations to submit the same in writing to the Commission no later than December 30, 1974. The public hearing was held pursuant to the notice.

On January 14, 1975, the Permit Board voted to issue Permit No. MS 0027294 without modification. This was the waste water discharge permit applied for by DuPont. George F. Riess, individually and as President of Save The Bay, Inc., petitioned the Commission on January 27, 1975, for a hearing on the question of issuance of the waste water discharge permit to DuPont. The Commission did not act on this request for a hearing. On February 18, 1975, George F. Riess and Save The Bay, Inc. filed a petition for appeal with supersedeas and for injunctive relief in the Chancery Court of the First Judicial District of Harrison County. The bill of complaint, among other things, prayed that the Commission deny any permit to DuPont authorizing any discharge of titanium dioxide plant waste into the Bay of St. Louis or into any well in the vicinity thereof and for general relief.

Appellants requested a de novo hearing by the chancery court, but this request was properly refused by the court because it was acting as an appellate court rather than a trial court. Appellants moved that the Commission be required to submit its entire file pertaining to the permits issued DuPont. The motion was granted; the files were presented and introduced at the hearing. The chancery court then rendered its final decree affirming the issuance of the permits by the Permit Board.

The first question presented is whether applicants were granted a hearing by the Commission as provided by section 41, or stated differently, did the December 30,1974 hearing satisfy the requirements of section 41?

Section 41 provides in part:

In addition to any other remedies that might now be available, any person or interested party aggrieved by any order of the commission, shall have a right to file a sworn petition with the commission setting forth the grounds and reasons for his complaint and asking for a hearing of the matter involved, provided that no hearing on the same subject matter shall have been previously held. (Emphasis supplied).

Appellees argue that the hearing December 30, 1974, was the only hearing appellants were entitled to because section 41 specifically prohibits a second hearing by the Commission on the same subject matter. We are not persuaded by this argument because the 1974 hearing was solely for the purpose of permitting interested parties to express their views and was not a hearing as contemplated by section 41. An information hearing such as the December, 1974, hearing is discretionary with the Commission. This kind of hearing might be useful on the question of issuing a permit because the attention of the Commission might be directed to possible effects of air emissions or waste water discharges not previously considered by the Commission, but a hearing of this kind does not satisfy the requirements of section 41. The only hearing accorded persons who are not permit applicants or holders, but who may be affected by permits issued, is contained in section 41. The requirement of due process is only satisfied by a hearing held as prescribed in section 41.

The second question is appellees contention that an appeal may not be taken from the orders of the Permit Board issuing the permits because the orders authorizing the permits were orders of the Permit Board and not orders of the Commission. Section 49-17-7(a) provides for a Commission of eleven (11) members. Section 49-17-17(m) grants the Commission power to issue, continue in effect, revoke, modify, or deny permits for the discharge of contaminants and waste into the air and waters of the state. A Permit Board of five (5) members, who are also members of the Commission, is created by section 49-17-28. The Permit Board is given authority to review applications and issue, modify, revoke, or deny permits. The order of the Permit Board in issuing, modifying, revoking or denying a permit, unless modified or disapproved by the full Commission, is an order of the Commission. For this reason we reject the argument that the issuance of the permits in this case was not by orders of the Commission.

For the foregoing reasons we reverse the decree of the chancery court affirming the issuance of the permits in question by the Permit Board. The chancery court was acting as an appellate court and had no jurisdiction of the case because appellants had not been afforded a hearing under section 41. The chancery court should have dismissed the appeal and remanded the petition to the full Commission for a hearing. Upon remand, DuPont as permit holder, should be given notice of the hearing and allowed to participate to satisfy due process requirements to it.

It is noted that no time limitation is prescribed by section 41 within which a petition for a section 41 hearing may be filed. This is probably an oversight by the legislature and can be easily corrected by an amendment. We note there is a 30 day limitation of time provided for petitions filed by a permit holder or applicant under section 49-17-29(l)(b) and (2)(b) when the application for hearing is made to the Permit Board and a similar 30 day limitation under 49-17-31(c) when the application for hearing is made to the full Commission.

REVERSED AND REMANDED TO THE COMMISSION FOR HEARING.

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

WALKER, J., took no part in this decision.


text:
    John M. HILL and Wallace A. Moran v. W. F. MOSLEY et al.
    No. 48970.
    Supreme Court of Mississippi.
    Dec. 7, 1976.
    Rehearing Denied Jan. 26, 1977.
    John M. Hill, pro se.
    Marby R. Penton, Pascagoula, for appellants.
    Estes & Blackwell, Neil W. White, Jr., Leonard A. Blackwell, II, Gulfport, for ap-pellees.

      Before SMITH, ROBERTSON and WALKER, JJ.
   AFFIRMED.


author: WALKER, Justice, for the Court:

text:
    MILLERS OF JACKSON, MEADOWBROOK ROAD, INC. v. Ralph L. NEWELL.
    No. 49018.
    Supreme Court of Mississippi.
    Dec. 7, 1976.
    Rehearing Denied Jan. 26, 1977.
    Watkins & Eager, Hassell H. Whitworth, Thomas M. Murphree, Jackson, for appellant.
    Chill, Chill & Dove, Luke Dove, Jackson, Richard E. Stratton, III, Brookhaven, for appellee.

      Before INZER, ROBERTSON and WALKER, JJ.
   WALKER, Justice, for the Court:

On March 2, 1973, Ralph L. Newell slipped and fell on a toy Volkswagen somehow present in an aisle at Millers Department Store in Jackson. He sued for damages in the Circuit Court of the First Judicial District of Hinds County, Mississippi, and obtained a jury verdict in the amount of $50,000. On appeal, Millers cites several errors. We have concluded that the evidence presented does not support a finding of negligence on the part of Millers.

Daryl Bridges, Millers’ clerk assigned to the toy department, testified that at the time of the accident he was helping a fellow employee put up merchandise in the hardware department. Within a half hour before Mr. Newell’s accident, Bridges had seen a small child playing in the toy department, but the child was located several aisles over from where the toy Volkswagens were kept. After seeing the child, Bridges went over to the toy department to straighten up and then returned to hardware.

Mr. Charles B. Parker, the store’s security manager, testified that he had returned from lunch at about a quarter until one to begin his rounds of the store. One of his duties, in addition to guarding against shoplifters, was to search for safety hazards. During his rounds after lunch, Mr. Parker found nothing on the aisles in the toy department. It was only half an hour later when Bridges and Newell came to his office to report the accident.

Newell testified that he entered the store at approximately 1:00 or 1:30 to purchase a checker set and an air filter. He asked a clerk for help in finding a checker set but was told that none was available. On his way to find the air filter, Newell stepped on the toy Volkswagen and fell, injuring himself.

There are several circumstances in which a store owner may be held liable to an invitee in such a case. Where the dangerous condition on the floor is traceable to the proprietor’s own negligence, no knowledge of its existence need be shown. Mississippi Winn-Dixie Super Markets, Inc. v. Hughes, 247 Miss. 575, 584, 156 So.2d 734, 736 (1963). In this case, absolutely no evidence was presented from which the jury could infer that some agent of Millers had caused the toy to be present on the floor. Where the presence of the condition is due to the act of a third party, it must be shown that the defendant had actual or constructive notice of its existence. Id. at 584, 156 So.2d at 736. Since Parker had inspected the toy department only half an hour before Newell’s accident, the jury could not conclude that the toy had been in the aisle long enough for the defendant to have had constructive notice of its presence. The circumstances are similar to those presented in Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916 (Miss.1966), in which this Court reversed a judgment granted to a plaintiff who had slipped and fallen on a gumball. This Court held that constructive notice could not be inferred because the floor had been cleaned that morning, the store’s employees had been instructed to search for safety hazards, and two employees had walked through the area within an hour before the accident without seeing a gumball on the floor. Id. at 918. All these factors are demonstrated by the evidence in this case, and we conclude that no constructive notice was shown.

Indeed, Newell, in his brief, scarcely contends that he has met the Mississippi standard of constructive notice. Rather, he argues that a showing of constructive notice should not be required in regard to a self-service retail store. Because the proprietor has decided, for his own commercial purposes, to allow customers to roam freely through his store, he should bear the costs occasioned by the risk they create.

Newell relies primarily on cases from other jurisdictions, especially Ciminski v. Finn Corp., 13 Wash.App. 815, 537 P.2d 850 (1975). In that case, a customer in a self-service cafeteria had slipped in a liquid spilled on the floor near the serving line and the restroom. The court concluded that a plaintiff need not prove that the operator of a self-service business had actual or constructive notice of the particular hazard which caused the injury. It would be sufficient to show that he had actual or constructive notice that such hazards could occur, and that he had not taken reasonable measures to forestall them. The court went on to say, however:

Requiring the owner of a self-service operation to exercise reasonable care in protecting his business invitees from the foreseeable risks of his method of doing business does not make such owner an insurer of those on his premises. If he has taken all precautions reasonably necessary to protect his invitees from injury, he is not liable merely because someone is injured on his property. (Id. at 823, 537 P.2d at 855).

See also Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966); Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796 (1970). Contra, Allen v. Federated Dairy Farms, Inc., 538 P.2d 175 (Utah 1975).

This principle finds some slight support, although in a different context, in our own cases. In F. W. Woolworth Co. v. Stokes, 191 So.2d 411 (Miss.1966), this Court held that where the proprietor of a store had knowledge that mud and water were being tracked into his store on a rainy day, the plaintiff need not prove constructive notice of a particular puddle, but only that the proprietor had not taken reasonable precautions to protect against the general hazard. Id. at 416-418. It should be noted that this reasoning applied to a hazard which was only present on intermittent occasions, and not to a hazard inherent in the proprietor’s method of doing business.

Assuming, without deciding, that the operator of a self-service business has a general duty to take reasonable precautions to protect his customers against a general category of hazards caused by other customers, even though he has no constructive notice of the specific hazard involved, we must conclude that such reasonable precautions were taken in this case. The record discloses that the aisles were swept daily and that a security officer made periodic rounds of the store. Furthermore, all employees were instructed to straighten up their departments and to be alert for safety hazards. We cannot hold that they were required to do more.

Newell seems to argue that accidents are an inevitable concomitant to doing business in a self-service fashion and that such costs should be charged to the proprietor. The law does charge certain costs of preventing accidents to the proprietor, but the law does not require that he provide perfect protection against accidents. Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473, 476 (Miss.1967). Even Cimin-ski only requires that he take reasonable precautions. Furthermore, our law requires that he must remove those hazards of which he has actual or constructive notice. It should be noted that the customer as well as the proprietor benefits from a self-service operation. The customer chooses to shop in a self-service store for his own convenience, and it is reasonable that the law should impose upon him a certain duty to look out for his own welfare. Where, as here, the proprietor has taken reasonable precautions to protect his customers, the costs of accidents must fall on those customers who are in a better position to look out for themselves.

Because we have concluded that there is no theory of law under which the evidence presented in this case can support a finding of negligence, the judgment must be reversed and rendered.

REVERSED AND RENDERED.

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


author: FRED P. WRIGHT, COMMISSIONER

text:
    Rex LIVINGSTON and C. A. Tate, Jr. v. HOHENBERG BROTHERS COMPANY.
    No. 48958.
    Supreme Court of Mississippi.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.
    Taylor Webb, Leland, for appellants.
    Lott, Sanders, Gwin & Melton, Arnold F. Gwin, Greenwood, for appellee.
    Before GILLESPIE, C. J., SUGG and BROOM, JJ., and FRED P. WRIGHT, Commissioner.
   FRED P. WRIGHT, COMMISSIONER

for the Court:

This is an appeal from the Chancery Court of Washington County, Mississippi, which came before the court on a bill of interpleader filed by Leland Compress Company, Inc.

The facts show that Rex Livingston and C. A. Tate, Jr., appellants, entered into contracts with Hohenberg Brothers Company, appellee, to sell certain cotton to them at a price of thirty cents a pound for all cotton delivered to the compress before December 7, 1973. Each of these contracts contained the following provisions:

“In case of loss prior to time warehouse receipts are issued, the loss shall be reported to the Buyer. Any insurance settlement shall be for Producer and Seller’s account with no further obligation to Buyer.
“In case of loss after warehouse receipts have been issued, the cotton shall be considered the property of Buyer and shall be billed on the contract at contract price.”

The facts were largely submitted to the court by stipulation of the parties and testimony of two witnesses. The proof is without substantial conflict. The facts show that the appellants delivered twenty-six bales of cotton to the compress on October 10, 1973. Upon delivery the cotton was weighed, tagged, a weight sheet completed and had attached a warehouse tag which was numbered and corresponded to the final warehouse receipt number. All the information required for the completed warehouse receipt was furnished at the time of the delivery of the cotton. After the delivery of the cotton there was a fire in which the cotton was burned. The fire occurred also on October 10, 1973. The warehouse receipts were shown to have been back dated as being issued on October 10, 1973 and bore that date. The facts showed that the warehouse receipts were actually completed and issued the following day, being October 11, 1973.

The insurance carrier for the compress paid it the amount of Nine Thousand Three Hundred Seventeen and 85/100 ($9,317.85) Dollars for the damaged cotton, representing the full market value of it. Appellants claimed the entire proceeds of the insurance and the appellee admits that appellants are entitled to the contract price of thirty cents a pound, but claim the excess over the thirty cents a pound.

The chancery court found in favor of the appellee and awarded appellants the contract price of thirty cents a pound for the cotton in question and awarded Five Thousand Two Hundred Forty-nine and 19/100 ($5,249.19) Dollars to appellee as the difference between the contract price of thirty cents a pound and the total insurance proceeds which represented the fair market value at the time of the loss.

The question to be determined is whether the warehouse receipts were issued as provided in the contracts. The meaning of the words in the contracts “are issued” and “have been issued” will be determinative of the question.

48 C.J.S. Issue, at page 778 (1947) defines the meaning of the word “issued” and states as follows:

“ ‘Issued.’ The past participle of the verb ‘issue’. It is defined as meaning emitted or sent forth; delivered or put into circulation; delivered to the purchaser; caused to go forth or to be delivered; assigned, transferred, or delivered; sent out. When used with reference to instruments transferring title to land the word ‘issued’ means ‘delivered’.”

Also in 48 C.J.S. Issue, at page 783 (1947), the following is stated:

“In Commercial Law Generally.
“In general. The word ‘issue,’ as a commercial or financial term, is employed both as a noun and as a verb, and has several phases of meaning.
“As a noun. In one sense, used as a noun, the term indicates a set, a class or series of securities comprising all that are emitted at one and the same time. In a different sense the word means the delivery of an instrument for use and circulation, and, particularly with reference to negotiable securities, it is defined in the words of the Negotiable Instruments Act as the first delivery of the instrument, complete in form, to a person who takes as holder.
“As a verb. In its ordinary commercial or financial sense, the word ‘issue,’ as a verb, means to emit, put into circulation, or dispose of securities already authorized and prepared for distribution; and it has a restricted, special, and almost technical meaning when used with reference to other particular transactions. It also may be employed in connection with commercial or financial transactions or instruments in its ordinary sense and having its ordinary significance, and with no technical meaning.”

In the Mississippi Uniform Commercial Code, Section 75-3-102, Mississippi Code (1972), Definitions and Index of Definitions, it is stated:

“(1) In this chapter unless the context otherwise requires
(a) ‘Issue’ means the first delivery of an instrument to a holder or remitter.”

It thus appears that the words “are issued” and “have been issued” used in the contracts between the appellants and appel-lee mean that the warehouse receipts not only must have been complete in form and signed as required by Section 75-7-202, Mississippi Code (1972), but must have been delivered to the proper party entitled to receive them. The facts show that warehouse receipts were not completed before the cotton was burned, and were not completed until the following day. It does not affirmatively appear that the warehouse receipts were signed on October 10, 1973 prior to the loss. Under the facts as exist here the warehouse receipts were not issued prior to the loss as provided by the contracts between the parties.

The language of the contracts place the risk of loss before the issuance of the warehouse receipts on the sellers and the risk of loss after the warehouse receipts had been issued on the buyer. The cotton was burned and the loss occurred before the warehouse receipts had been issued as called for in the contracts.

It thus follows that the sellers are entitled to the entire proceeds of the insurance settlement since the loss occurred prior to the time the warehouse receipts were issued.

The decree of the chancery court is reversed and judgment is rendered here for the appellants.

REVERSED AND RENDERED.

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

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


text:
    Kevin SISK v. STATE of Mississippi.
    No. 49467.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    Johnston, Pritchard & Wright, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and WALKER, JJ.
   AFFIRMED.


text:
    John L. KERR and G. O. Kerr, Jr., Co-Partners d/b/a Shippers Express v. O. D. JUDGE, Jr.
    No. 48995.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    Richard E. Stratton, III, Brookhaven, for appellant.
    McGehee, McGehee & Torrey, H. B. Mayes McGehee, Meadville, T. F. Badon, Liberty, for appellee.
    Before INZER, P. J., and ROBERTSON and WALKER, JJ.
   AFFIRMED.


text:
    William Ralph WESSON et ux. v. Charles N. GUSMUS et al.
    No. 49076.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy Mitchell, Jr., Tupelo, for appellants.
    Hutchinson & Hodge, Wilson E. Hodge, Tupelo, for appellees.
    Before INZER, P. J., and ROBERTSON and WALKER, JJ.
   AFFIRMED.


text:
    Gerald Benoit PROULX v. Rita Elizabeth PROULX.
    No. 49053.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    Parker, Averill & Winston, Joseph Edmund Winston, Roy 0. Parker, Tupelo, for appellant.
    Bramlett, Mounce & Soper, Paul Kent Bramlett, Tupelo, for appellee.
    Before PATTERSON, P. J., and SMITH and LEE, JJ.
   AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and BROOM, JJ., concurring.


text:
    James BROWN v. Kenneth Patrick JOYCE et al.
    No. 49072.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    Zachary, Gillespie & Wise, Francis T. Zachary, Hattiesburg, for appellant.
    R. M. Sullivan, Samuel E. Farris, Hatties-burg, for appellees.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Jr., Chancellor.

Before INZER, P. J., and ROBERTSON and WALKER, JJ.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, SUGG, BROOM and LEE, JJ., concur.


text:
    Ozzie Lee ARCHIE v. STATE of Mississippi.
    No. 49307.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    Rehearing Denied Jan. 26, 1977.
    Beach, Beach, Luckett & Hanbury, Stephen L. Beach, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

Before INZER, P. J., and SMITH and BROOM, JJ.

AFFIRMED.

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


author: LEE, Justice:

text:
    In the Matter of Shellye Deneen YARBER and David Anthony Yarber, minors. Alton YARBER v. Robert W. DEARMAN et ux.
    No. 49056.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    Stanford Young, Waynesboro, for appellant.
    Peter K. Smith, Quitman, for appellees.
    Before PATTERSON, SMITH and LEE, JJ.
   LEE, Justice:

The Chancery Court of Clarke County entered a decree granting adoption of Shel-lye Deneen Yarber and David Anthony Yarber, children of the former marriage of Frances L. Dearman and Alton Yarber, to Robert W. Dearman, their stepfather, and Yarber appeals to this Court. We reverse.

Appellees, Robert W. Dearman and Frances L. Dearman, filed their petition for adoption without stating a ground therefor, and subsequently amended the petition, averring that appellant failed to pay support as ordered by the court and failed to make attempts to see the children under the reasonable visitation privileges of the divorce decree granted to Mrs. Dearman. A demurrer was sustained to the amended petition, and a second amended petition was filed, which followed the language of the statute, charging (1) abandonment of the children by appellant, and (2) that appellant is mentally, morally and otherwise unfit to rear or train the children, for the reason that on October 11,1974, appellant drove to the Dearman home with the intent of killing Robert W. Dearman, and shot Dearman four times.

The evidence shows that appellant did not perform the provisions of the divorce decree in contributing financial support to his children, although he sporadically paid small amounts of support, and from March 10, 1972, through December 4, 1973, sent twenty-three (23) support checks to Mrs. Dearman in addition to sums paid through the Welfare Department. He visited the children about once every six months, called them on the telephone at infrequent intervals, and sent them Christmas presents.

On October 11, 1974, while the petition for adoption was pending, appellant called his former wife and requested permission to visit with the children. She told him that he could pick up the children about 10:30 p. m. after a ballgame. She testified that he used abusive language toward her. About 10:30 p. m. appellant drove to the Dear-mans’- home, Mr. Dearman came out to appellant’s vehicle, an argument ensued, and appellant shot Dearman four times with a .25 caliber pistol. Although Dearman was hospitalized for ten days, he made a complete recovery.

Mississippi Code Annotated § 93-17-7 (1972) provides:

“No infant shall be adopted to any person if either parent, after having been summoned to sign the petition for adoption, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, in either of which eases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children, sought to be adopted. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if, within one year prior to the adoption proceedings, the parental rights of the parent or parents have been terminated by the procedure set forth in sections 93-15-1 to 93-15-11, Mississippi Code of 1972, and such termination shall be res judicata on the question of parental abandonment or unfitness in the adoption proceedings.” (Emphasis supplied).

This Court has held that abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. In Re Hall, 202 So.2d 641 (Miss.1967); Wright v. Fitzgibbons, 198 Miss. 471, 21 So.2d 709 (1945).

In Ford v. Litton, 211 So.2d 871 (Miss.1968), the lower court held the father was not unfit, but that he had abandoned the child, and this Court said:

“In an adoption proceeding, on the threshold, the court is met with the presumption that the child’s parents will love him most and care for him best, and that, ordinarily, it would be for the best interests of the child that he remain in the custody of his parents. In all contests between a parent and other persons, this presumption is conclusive unless it be clearly shown that by reason of immoral conduct or vicious habits the parent is an unsuitable person to have the custody, or has forfeited the right to custody by reason of having abandoned the child, or other circumstances which clearly indicate that the best interests of the child will be served in the custody of another. Bunkley & Morse, Amis on Divorce and. Separation in Mississippi, § 8.01 (1957). This Court has consistently followed this rule and has not found abandonment unless it has been clearly proved. See Schillereff v. Adamany, 240 Miss. 275, 127 So.2d 392 (1961); Mayfield v. Braund, 217 Miss. 514, 64 So.2d 713, 65 So.2d 235 (1953); Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L.R.A. 839 (1900).” 211 So.2d at 873-874.

The chancellor held the appellant exhibited a callous indifference to the welfare of his children in contributing only paltry amounts of support to them and in visiting them only sporadically, but he did not find that appellant had abandoned his children. The statute makes abandonment the ground for adoption, not callous indifference.

The chancellor found, in granting the adoption, that:

“[T]he father by his actions of failing to properly care for and support his children in every way and his conduct overall and especially in regard to the October 11th incident, clearly convinces this Court that he is unfit and should be denied the privileges of a father, and it is for this reason that this Court feels that the adoption should be granted. I see no possibility of any relationship being re-established between the father and his children, especially the ten year old, who witnessed the October 11th incident.”

Appellees cite the case of Shoemake v. Davis, 216 So.2d 420 (Miss.1968), where the natural father admitted he murdered the children’s mother, buried her body underneath an outdoor toilet and utilized and permitted his children and parents to use the toilet. The Court held that such conduct evidenced depravity and moral unfitness contemplated by the statute.

In Mayfield v. Braund, 217 Miss. 514, 64 So.2d 713 (1953), the lower court held the father to be morally unfit and that he had abandoned and deserted his children because he had been sentenced to ten years in the penitentiary. This Court reversed the adoption decree noting that the appellant there had made a model prisoner and had become rehabilitated.

This case involves an adoption of children and does not involve a question of their custody and does not affect their custody, unless the adoption decree were permitted to stand. In passing upon the adoption of the children, the Court must first determine that one of the grounds for adoption exists, (1) abandonment or (2) moral or otherwise unfitness, and then what is for the best interest of the children. The averment in the second amended petition sets forth that appellant is unfit because of the October 11 shooting, and the chancellor principally found that appellant is unfit because of that incident. While the entire situation existing between the Dear-mans and appellant and the children is a regrettable one, the chancellor was manifestly wrong in holding that appellant is morally or otherwise unfit to rear and train his children and that they should be taken from him, their names changed, and rights and privileges between them extinguished. The Court has the power, in the original divorce action, to enforce the payment of support and to determine what is best for the children insofar as their custody is concerned.

Even though Dearman loves the children, provides for them and is willing and anxious to educate them, and can and will provide finer things for them, this, in itself, does not justify the taking of the children from their natural father. If a person could adopt a child from his natural parents because the person could better provide for him, give him things he needed and wanted, educate him and provide a fine home for him, then many people in the so-called underprivileged group could have their children taken away from them because it could be said their best interest was promoted by doing so.

JUDGMENT REVERSED AND DECREE OF ADOPTION AND CHANGE OF NAME SET ASIDE AND CANCELLED.

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


author: SMITH, Justice,

text:
    Isiah BENNETT v. STATE of Mississippi.
    No. 49427.
    Supreme Court of Mississippi.
    Jan. 5, 1977.

      C. Darrell Reeves, Jr., Sims & Sims, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and LEE, JJ.
   SMITH, Justice,

for the Court:

Isiah Bennett was convicted of murder in the Circuit Court of Lowndes County and sentenced to life imprisonment. He has appealed and assigned one ground for reversal. It is argued that the granting, at the request of the State, of a jury instruction on manslaughter was error.

No objection to the instruction was interposed in the trial court as required by Rule 42 of the Supreme Court of Mississippi, but it is now contended that the instruction improperly shifted the burden of proof to appellant. It is contended by appellant that the present case parallels Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In the Mullaney case a trial court in the State of Maine instructed the jury, among other things, as follows:

[T]hat if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. (Emphasis added). (421 U.S. at 686, 95 S.Ct. at 1883, 44 L.Ed.2d at 512).

The trial court, in the Maine case reviewed in Mullaney, had so instructed the jury under the court’s interpretation of statutes of the State of Maine (17 Me.Rev.Stat.Ann., § 2551 and § 2651), dealing with the crimes of murder and manslaughter. The United States Supreme Court held that the instruction in Mullaney unconstitutionally shifted the burden of proof to the defendant and thus was violative of due process.

The instruction criticized by appellant here is in the following language:

The Court instructs the jury for the State that manslaughter is the killing of a human being in the heat of passion, without malice, by the use of a dangerous weapon, without authority of law, and not in necessary self-defense; and if the jury believe from the evidence beyond a reasonable doubt that the defendant Isiah Bennett so killed the deceased, Ephris Shelton, then the jury will find the defendant guilty of manslaughter.
And in that event the form of your verdict will be:
“We, the jury, find the defendant guilty of manslaughter.”
Writing your verdict on a separate sheet of paper.

No instruction defining manslaughter was requested by appellant, and, as noted, no objection to the above instruction was made as required by Rule 42 of the Supreme Court of Mississippi. Nevertheless, we have examined the instruction in the light of criticisms now raised for the first time. We are unable to see any resemblance of the criticized instruction in this case to the instruction condemned in Mulla-ney. The evidence of the two eyewitnesses in Bennett’s trial was to the effect that his “girl friend”, Lillie Mae Miller, had asked Ephraim Shelton to give her and Trudy Cotton a ride home from Itel’s cafe. In the course of taking them home Shelton had stopped at a traffic light when appellant drove up behind them and blew his horn. Lillie Mae Miller asked Shelton to pull over so that she might talk to Bennett. Bennett got out of his car and walked over to Shelton’s car. Trudy Cotton rolled down her window and the women observed that Bennett had a pistol in his hand. When he said he wanted to speak to Lillie Mae Miller, Trudy Cotton, who was on the outside, got out of Shelton’s car. Lillie Mae Miller then prepared to follow her out. At that time Bennett fired over her and shot Shelton in the head, killing him. The women testified that, at the time Shelton had no weapon of any kind in his hands. Bennett testified as a witness in his own behalf in support of his plea of self-defense. His version of the occurrence was that Shelton had “slid” all the way across the seat to the passenger side of the car and was coming up with a gun. It was for this reason, said Bennett, that he “just wheeled around and shot.” Obviously, appellant’s version and that of the two eyewitnesses were in irreconcilable conflict. The jury rejected appellant’s version and resolved that conflicts in the evidence against him.

Upon the evidence in this case it was proper for the court to submit to the jury instructions defining both murder and manslaughter, which was done. The definition of manslaughter in the criticized instruction is neither incorrect nor misleading and states with sufficient clarity the burden of proof which must be met by the State in order to justify conviction.

We have concluded that appellant’s criticism of the instruction is without merit, that the conviction is supported by credible evidence and that the conviction must be affirmed.

AFFIRMED.

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


author: INZER, Presiding Justice,

text:
    Lee Ervin POLK v. STATE of Mississippi.
    No. 49396.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    Henry E. Pope, Columbia, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before INZER, ROBERTSON and WALKER, JJ.
   INZER, Presiding Justice,

for the Court.

Appellant, Lee Ervin Polk, was indicted, tried and convicted in the Circuit Court of Jefferson Davis County for the crime of the sale of marijuana. He was sentenced to serve a term of ten years in the Mississippi State Penitentiary. From this conviction and sentence he appeals. We affirm.

This case involves the question of whether appellant’s conviction falls within the one transaction rule announced in Laughter v. State, 241 So.2d 641 (Miss.1970), so as to constitute double jeopardy. We hold that it does not.

The evidence on behalf of the state reveals that on the night of November 8, 1975, at about 10 p. m. Hal Martin, an agent of the Mississippi Bureau of Narcotics, Cleve Daughdrill, a constable and deputy sheriff of Jefferson Davis County, and Ben McNair, a cooperating individual, went to the home of Lee Ervin Polk for the purpose of purchasing marijuana.

Martin and McNair went into the home and Daughdrill stayed outside. Martin asked Polk if he dealt in lids of marijuana. Polk replied that he did not sell by the ounce (lids) but sold only by the joint (a marijuana cigarette) because there was more money to be made that way. Martin told Polk he would like to buy three marijuana cigarettes. Polk turned and walked to the back of the room, keeping his back to Martin. He then walked back and handed Martin three cigarettes. Martin examined and smelled them, then handed Polk three one dollar bills. Martin then asked Polk if he could obtain more marijuana and Polk told him that he did not have any more he could let go other than in joints.

At this point, Martin pulled his revolver, identified himself as an undercover agent and placed Polk under arrest. Constable Daughdrill was called into the house and the two men searched appellant’s person and found a clear plastic bag containing forty marijuana cigarettes. The three cigarettes purchased by Martin were placed in a plastic bag, labeled and sent to the crime laboratory and identified at the trial as being marijuana.

Polk was indicted in the circuit court for the sale of the three cigarettes and was charged in the justice court v/ith possession of marijuana, based on the forty cigarettes found after his arrest. Polk pled guilty to the charge of possession and was fined $300.

During the course of the present trial, counsel for Polk moved for a dismissal of the charges on the ground that he had pleaded guilty to a charge of possession of marijuana and the state was estopped to try him for the sale under the one transaction theory. This motion was overruled. On appeal, the only assignment of error argued is that the trial court was in error in failing to dismiss because the evidence clearly showed that both charges grew out of the one transaction. The state elected to try him for possession instead of the greater offense of sale; therefore, his conviction of sale constituted double jeopardy.

Both appellant and state cite and rely on Laughter v. State, supra. In Laughter, after discussing the one transaction rule adopted in other states, we said:

We are of the opinion that the one transaction principle is sound when properly limited. Since the facts in this case show that the appellant procured the marijuana at the request of Walker for the purpose of sale to Watson, his possession and sale of marijuana constitute one transaction and the possession was only incident to the sale. Under these circumstances possession was a lesser included or constituent offense of the sale and it would be unfair to punish appellant for both offenses. However, we hasten to point out that the one transaction principle does not apply when it is shown that a defendant had in his possession marijuana or other prohibitive drugs either before or after the sale. In other words, if the appellant had gone to a place where he had marijuana concealed, procured it and sold it to the undercover agent he could have been properly charged, convicted and punished for the possession and sale of marijuana. Likewise, had appellant procured additional marijuana other than that sold the agent and retained possession he could be properly charged, and convicted for the possession of that marijuana and the sale of the marijuana to the agent. (241 So.2d at 644).

It is clear from the foregoing statement that the one transaction rule does not apply in this case. Polk had in his possession additional marijuana other than the three cigarettes sold to the agent and retained possession of that marijuana after the sale. Under these circumstances, his conviction for the sale of the three cigarettes, after his plea of guilty to possession of the cigarettes found in his possession after the arrest, did not constitute double jeopardy.

For the reasons stated, this case must be and is affirmed.

AFFIRMED.

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


text:
    STATE HIGHWAY COMMISSION of Mississippi v. Raymond H. BAILEY et al.
    No. 49060.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    James W. Warren, Jr., Holly Springs, for appellant.
    Fant, Crutcher, Moore & Spencer, D. Rook Moore, III, Holly Springs, for appel-lees.
    Before INZER, P. J., ROBERTSON and WALKER, JJ., and DARWIN MAPLES, C.
   Appeal from Special Court of Eminent Domain Court, Marshall County; W. W. Brown, Judge.

AFFIRMED ON CONDITION OF RE-MITTITUR; OTHERWISE REVERSED AND REMANDED FOR A NEW TRIAL.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, SUGG, BROOM and LEE, JJ., concur.


text:
    Billy Dave RUCKER v. Virginia Faye RUCKER.
    No. 49074.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    Gordon, Henry & Mangum, R. Leon Man-gum, Union, for appellant.
    James R. Allen, Carthage, for appellee.
    Before INZER, P. J., and ROBERTSON and WALKER, JJ.
   Appeal from Chancery Court, Neshoba County; Robert Prisock, Chancellor.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, SUGG, BROOM and LEE, JJ., concur.


text:
    Adra Anne GIPSON v. STATE of Mississippi.
    No. 49435.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    Zachary & Gillespie, Paul R. Lambert, Hattiesburg, for appellant.
    A. P. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before INZER, P. J., and ROBERTSON and WALKER, JJ.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, SUGG, BROOM and LEE, JJ., concur.


text:
    Clifton A. LOPER v. STATE of Mississippi.
    No. 49448.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    J. C. Martin, Jr., Waynesboro, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Wayne County; Lester F. Williamson, Judge.

Before INZER, P. J., and SMITH and BROOM, JJ.

REVERSED AND RENDERED.

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


text:
    Robert WILLIAMS v. Jason MALLETTE.
    No. 49003.
    Supreme Court of Mississippi.
    Jan. 12, 1977.
    Bryan, Nelson, Allen & Schroeder, Gerald A. Dickerson, Pascagoula, for appellant.
    George S. Shaddock, Pascagoula, for ap-pellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

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

VACATED AND COUNTY COURT JUDGMENT REINSTATED.

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


author: FAULKNER, Justice.

text:
    Emily E. CLARK and Frank G. Clark v. Leroy MOORE.
    SC 1194.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    E. Drexel Meadors, Lanett, for appellants. •
    Hoyt W. Hill of Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellee.
   FAULKNER, Justice.

This is a case about a Charoláis bull, with a “Ferdinandish” disposition, creating havoc and excitement in Opelika, Alabama, one summer day.

On September 8,1973, Moore, the present owner of the bull, was transporting him in a stake body truck to his new owner. When the truck came to a railroad crossing in Opelika, the bull, without warning, jumped over the 7-foot metal body, onto the cab of the truck, and then to the ground. Moore, following behind in an automobile, attempted to capture the bull. Along came a young man on a motorcycle, who began circling the bull, and, at the same time, revving the motor. The bull, excited by all this action, then broke away from his would-be captors, and ran into the streets of Opelika. There he created a great deal of excitement, and — for Mrs. Clark — misery, pain, and suffering.

Mr. Orville Everette Hall, a gardener for Mrs. Clark, described the event at trial as follows:

“A. I was cutting a little ole tree up on bank right by her drive-way. I was laying down in the bushes cutting a little ole tree and I heard some puffing and a bull jumped over me, and I turned and I looked up and seen the bull. And he had his legs back like this and when it come out like that it caught my leg and broke it and—
Q. All right sir, let me ask you a question here, Mr. Hall. Where were you when this incident that you’ve described took place?
A. At Mrs. Clark’s.
Q. Where were you on her property?
A. Back in her drive-way.
Q. All right, sir. Now, if you would, describe the — I believe you said it was a bull?
A. Yes, sir.
Q. That you saw come onto her property and if you would describe that bull as best you can, the bull that you saw?
A. He’s a light colored bull, Charoláis, a Charoláis or whatever you call ’em.
Q. How long did you observe the bull, did you see it, uh—
A. Well probably six or seven seconds something like that, not long, I saw it good when I saw it.
Q. Do you have any idea how large it was with regard to whether it was, —did it appear to be a full grown bull to you?
A. Yes, sir, it did.
Q. All right, sir. Now you indicated that it actually ran over you?
A. Yes, sir, jumped over me.
Q. What happened after that?
A. Well Mrs. Clark was standing down in her drive-way on the other side of the embankment, whatever you call it, and the bull jumped and it hit her and spun her around and then the next jump it took it kicked her with, I don’t know if you’d call it kicked her, somein with the back leg. And the next motion he got her with the back leg.
Q. All right sir. How close were you standing to Mrs. Clark?
“A. I was about eight foot.
“Q. All right. Was she standing on her property when that happened?
“A. Standing her driveway,
“Q. Now, what took place after that, what happened to the bull after that?
“A. It went on by and just hit the corner of her garage and that was it.
“Q. You didn’t see the bull any longer after that?
“A. No, sir.”

Whether or not the bull actually attacked Mrs. Clark was discussed by the witness, Coleman:

“A. . . . Mrs. Clark was walking up the drive-way and he run by her and hit her, I believe it was with his shoulder.
* * # * * #
“A. Well he hit her with his shoulder and knocked her off balance and as he went on by her he kicked up with his back legs, you know like a bull does and he caught her right across the mouth.”

On cross-examination, the witness said:

“Q. Well now the bull did not butt into her with his head directly then did he?
“A. No.
“Q. And the bull was not attempting to gore her with his head or anything like that?
“A. No.”

Emily Clark brought suit against Moore for damages for personal injuries. Frank Clark, her husband, sought damages for loss of consortium. Counts 1 and 3 alleged a cause of action based on trespass to real property. Counts 2 and 4 sought relief based on Moore’s wrongful and improper keeping of an animal with dangerous propensities. The complaint as amended by Counts 4A and 4B alleged that Moore so negligently transported the bull through Opelika as to allow it to escape.

Counts 2, 4, 4A and 4B were submitted to the jury, and a verdict was returned for the defendant. The court granted motions to dismiss, and for directed verdict as to Counts 1 and 3. The Clarks’ motion for judgment n.o.v. or, in the alternative, a new trial, was denied.

The Clarks allege error by these two issues: (1) Was Moore, the owner of the bull, strictly liable for damages for trespass by the bull on the Clarks’ property? (2) May damages for personal injuries caused by a bull to a person who is the owner and possessor of land be recovered from the owner of the bull in an action for trespass upon the land by the bull? To each question we answer no, and affirm the trial court.

The Clarks contend that the stock laws found in Tit. 3, §§ 77-101 of the Ala.Code are applicable here, and Moore is, therefore, liable in damages to them. Tit. 3, § 78, Code of Alabama, provides that it is unlawful for an owner of livestock “to knowingly, voluntarily, negligently, or wilfully permit . livestock . . . to go at large . either upon the premises of another or upon . . . streets in . Alabama.” Tit. 3, § 79 provides that “[t]he owner of . livestock or animal being or running at large upon the premises of another . . . shall be liable for all damages done to crops, shade or fruit trees or ornamental shrubs and flowers of any person . . . ” Tit. 3, § 93(1) provides that “[tjhere shall be no ‘open range counties’ . . . and ... it shall be unlawful for . bulls ... to go at large in any county in the state.” Tit. 3, § 100 provides that “no livestock . shall run at large in any city ... of five thousand inhabitants or more.”

The Clarks claim that by virtue of these statutes, when read and construed together, Alabama has adopted the common law doctrine of trespass by cattle. We do not decide this, but we do find that, assuming that the common law did apply, they could not succeed in this appeal.

The terms “run at large,” “go at large,” and “being or running at large” as used in these statutes mean that the animals are free from restraint or control by the owner. Elliott v. Kitchens, 111 Ala. 546, 20 So. 366 (1895). Thus the bull, while being transported, was under the restraint or control of his owner. To be liable, Moore must have been shown to be negligent in transporting his bull, or negligent in permitting him to escape. Under the common law, the owner was liable in negligence if an injury to a person resulted when he failed to exercise reasonable care in controlling his animal being driven along the highway. Turner v. Coates, 1 K.B.D. 670 (1917). In Tillett v. Ward, 10 Q.B.D. 17 (1882), an ox, while being driven through a town, ran into a shop and caused damage to goods. No action lay because it was not shown that the drover was negligent.

The Clarks did not prove negligence on the part of Moore while transporting the bull; the jury found that he was not negligent; and the trial judge denied a motion for new trial.

We hold the trial judge properly dismissed the trespass counts, and directed a verdict as to them, and was correct in overruling the Clark’s motion for judgment n.o.v. or, in the alternative, a new trial.

AFFIRMED.

HEFLIN, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: EMBRY, Justice.

text:
    Moses A. DAVIS, Jr., et al. v. E. J. BURNETTE et al.
    SC 1433.
    Supreme Court of Alabama.
    Dec. 30, 1976.

      Charles P. Miller, Montgomery, for appellants.
    Lawrence F. Gerald, Jr., Clanton, for ap-pellees.
   EMBRY, Justice.

The issue before us in this case is whether a joint tenant with right of surviv-orship to property is a party who must be joined in an action seeking reformation of a deed to that property.

We<. reverse the decree, affecting the property, entered in this action absent the joint tenant as a party.

Mr. and Mrs. Moses A. Davis, Jr., brought this action to reform a deed which did not contain a description of land they claim to have acquired by it. That land adjoined property of E. J. Burnette and wife Pear-lene who owned their property jointly with right of survivorship. Mrs. Burnette was never made a party to the action.

The evidence was heard ore tenus; Mrs. Burnette was present and testified after which the court entered a decree of dismissal stating that, from the evidence, the Da-vises were not entitled to the relief requested. They filed motion for a new trial which was denied.

The Davises say it was error to enter the decree of dismissal and deny their motion for new trial because the findings of the court are against the weight of the evidence. For the reasons set out we reverse and remand, therefore need not reach the question of the sufficiency of the evidence.

Without Mrs. Burnette as a party the trial court did not have the title to the property, which would be affected by a decree, before it. Morris v. Owens, 292 Ala. 159, 290 So.2d 646 (1974). Joinder is governed by the rules of civil procedure.

“RULE 19
“JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION
“(a) Persons to be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.” (emphasis added)

In an action to reform a deed the absence of necessary or indispensable parties is a jurisdictional defect that makes the proceeding void. This defect can be raised on appeal for the first time even though not called to the attention of the trial court. Morris v. Owens, supra; Rogers v. Smith, 287 Ala. 118, 248 So.2d 713 (1971).

As stated, Mrs. Burnette was present in court during the entire trial and testified in the proceedings. It was error to dismiss the complaint for failure of the plaintiffs to add Mrs. Burnette as a party defendant. Under the circumstances of this case, it was incumbent upon the trial court, sua sponte, pursuant to the mandate of Rule 19, to order that she be made a party defendant and to proceed to adjudicate the respective interest of the parties.

Where it is noted that an indispensable party was absent in the proceedings below, the appellate court will express no opinion as to the evidence. Kirkley v. Bailey, 282 Ala. 115, 209 So.2d 398 (1968).

REVERSED AND REMANDED.

BLOODWORTH, JONES and BEATTY, JJ., and CATES, J. (sitting by designation of the Chief Justice), concur.