author: PER CURIAM. CATES, Presiding Judge

text:
    Ex parte Palestine HARDIN.
    6 Div. 111.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Arthur E. Parker, Birmingham, for petitioner Palestine Hardin.
    H. Powell Lipscomb, III, Bessemer, for petitioner Susie Green.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for respondent State.
   PER CURIAM.

The rule nisi shall issue returnable 10 A. M., November 21, 1975. Amendment 328, § 6.03(d) Cons.1901.

TYSON, HARRIS and DeCARLO, JJ., concur.

CATES, P. J., and BOOKOUT, J., dissent with opinion.

CATES, Presiding Judge

(dissenting).

We have been presented with a petition asking that we command Honorable Harry E. Pickens, Judge of the Tenth Judicial Circuit, Bessemer Division, to vacate an order of November 7, 1975.

That order was entered at the suit of the State of Ohio acting by and through the prosecuting attorney of Cuyahoga County.

Ohio moved — with notice to counsel for petitioner Palestine Hardin and Susie Green, a prospective deposing witness— that said witness Green appear before a Special Commissioner as ordered by the Court of Common Pleas of Cuyahoga County in a criminal proceeding by the State of Ohio against Palestine Harden.

In the Circuit Court, Bessemer Division, petitioner, through a non-resident attorney, moved that the Circuit Court dismiss or deny the motion of the State of Ohio. Prospective witness Green moved to intervene. Both these motions were denied.

I

Although Rule 28, ARCP, allows and enforces the taking of depositions for foreign states and countries, it is clear that power is confined to civil cases. Rule 1, Committee Comments, 2d. sent, (emphasizing the obvious) points out that the Rules of Civil Procedure “have no application in criminal proceedings.” Alabama has not adopted a Foreign Depositions Act. 23 Amjur2d, Depositions and Discovery, § 12.

Whether or not a deposition can be used in Ohio against a criminal defendant is for the court trying him.

II

Judge Bookout and I would forego deciding whether or not petitioner is entitled to relief whether by way of mandamus, prohibition, or injunction.

This is a constitutionally established court, as its name suggests, of appellate jurisdiction. Our original jurisdiction is only “to issue all writs necessary or appropriate in aid of appellate jurisdiction * * * if

Amendment 328, Ala.Cons.190i, § 6.03 provides, in addition to the above quoted limitation of original jurisdiction the following [taken verbatim from Michie’s Code, T. 13, § 111(4)]:

(d) The court of criminal appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Said court shall have authority to issue writs of injunction, habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction;

See Act 1051, 1973, p. 1676.

It follows that as we find in City of Canadian v. Guthrie (Tex.Civ.App.), 87 S.W.2d 316, the lawyers here into the wrong court have strayed. However, they come not as trespassers, if for no other reason than that § 11 of Act 987, September 12, 1969 requires us not to dismiss their case, but rather to suggest that it be transferred to the Supreme Court (or in certain causes to the Court of Civil Appeals). Otherwise we shall invade the province of the Supreme Court of Alabama.

In this instance we dissenters consider that this court is without jurisdiction and suggest that the petition be transferred to the Supreme Court of Alabama. The majority would usurp power because a petitioner puts “mandamus” in a petition, even though they admit that no appeal from Judge Pickens’ court can come to the Court of Criminal Appeals by an appeal in this proceeding.

BOOKOUT, J., concurs herein.

      . State v. Powell, 39 Ala.App. 246, 100 So.2d 38; State v. Allen, 42 Ala.App. 9, 150 So.2d 399 — “We are not aware of any interstate compact * * * for the extradition of witnesses.” See State v. Magee, 43 Ala.App. 218, 187 So.2d 274.
      The power to compel attendance of witnesses is limited to the territory of the state or nation. See Orfield, Subpoena in Federal Criminal Procedure, 13 Ala.L.R. 1 at p. 25; D’Aquino v. United States, 9 Cir., 192 F.2d 338, 375 (Japanese citizens).
      Compare Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 involving a State’s right for habeas corpus and testificandum for a Federal prisoner to testify.


source: Caselaw Access Project

author: SUGG, Justice.

license: Public Domain

text:
    Albert ESTES v. STATE of Mississippi.
    No. 48902.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    John E. Shaw, Kosciusko, for appellant.

      A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, ROBERTSON and SUGG, JJ.
   SUGG, Justice.

Petitioner was indicted for and pleaded guilty to two counts of armed robbery at the March 1942 term of the Circuit Court of Attala County. He was sentenced to serve two terms of fifty years in the state penitentiary. In 1974 petitioner filed a petition for writ of error coram nobis in the Circuit Court of Attala County alleging that he was not represented by counsel at the time he pleaded guilty in 1942. Counsel was appointed to represent petitioner in his coram nobis proceeding and a hearing was held on May 14, 1975.

Evidence presented at the hearing revealed that petitioner was indicted on March 5, 1942, for two counts of armed robbery and that, he was immediately transferred to the Attala County jail from the Lauderdale County jail where he was being held as the result of other convictions. On March 6, 1942, petitioner appeared for arraignment. He testified that he pleaded guilty, received two fifty year sentences, and was sent to the state penitentiary, all in the same morning. He said that he did not ask for an attorney, did not know that he was entitled to an attorney and, if one was appointed, he never knew about it. Petitioner also testified that he voluntarily pleaded guilty without threats, coercion or promise of reward, that he was in fact guilty of the crimes charged and prior to entering his guilty plea knew the maximum penalty that he could receive. He stated: “It was a capital offense and that’s the reason I pled guilty.”

Other evidence contradicted petitioner’s claim of lack of counsel. Alton Massey, a member of the Attala County bar since 1937, testified that he was appointed to represent petitioner on the day of the arraignment. Massey said that when he informed petitioner of the appointment and his willingness to represent him, petitioner spurned his offer and insisted upon pleading guilty. This conversation lasted approximately ten to fifteen minutes and, because of petitioner’s insistence upon pleading guilty, never touched upon the merits of the case. Massey had previously successfully represented an indigent charged with murder. In addition to Massey’s testimony, the court records disclosed that Massey was appointed to represent petitioner and was compensated for that representation.

The lower court dismissed the petition with prejudice, concluding that petitioner had been represented by court-appointed counsel who was effective.

Refined to their essence, petitioner’s contentions are that he was either denied the assistance of counsel or, alternatively, that the belated appointment of counsel was per se a denial of his right to the effective assistance of counsel.

We find no merit in petitioner’s claim that he was not represented by counsel. In 1942 it was mandatory in this state that counsel be appointed to represent a defendant charged with a capital offense. Mississippi Code Annotated section 2505 (1942) (originally enacted as Act of April 4, 1934, ch. 303, § 1); Robinson v. State, 178 Miss. 568, 173 So. 451 (1937). The evidence clearly establishes that the court followed the law and appointed counsel to represent petitioner. However, by his attorney’s own admission, the appointment took place no more than fifteen minutes prior to entry of the plea. Did the tardy appointment of counsel deny defendant the effective assistance of counsel?

In Rogers v. State, 243 Miss. 219, 136 So.2d 331 (1962), this Court sustained Rogers’ petition for writ of error coram nobis, set aside his guilty plea to manslaughter, vacated his sentence and judgment based thereon and remanded the cause for arraignment and trial. Rogers’ plea of guilty was entered within thirty-five minutes after the appointment of counsel; however, the plea of guilty was arranged between the trial judge and Rogers before indictment and the attorney appointed by the court knew nothing of those arrangements. Rogers, along with other defendants, was indicted for murder and before the term of court at which he entered his plea of guilty he and his relatives talked to the trial judge at least fifty times about this case. This Court stated that the case was unique because the person charged with inducing the plea of guilty with promises and persuasion was the judge who accepted the plea and whose duty it was to see that the plea was voluntary. Rogers was sentenced to life imprisonment on his guilty plea to the murder charge. During the same term of court, the judge had Rogers and some of his relatives brought before him and asked if Rogers wished to withdraw his plea of guilty to murder and enter a plea of guilty to manslaughter. Rogers agreed to this and the trial judge, who had previously prepared an order and an agreement to that effect for Rogers’ signature, told Rogers to read what he was signing. Following Rogers’ plea of guilty to the charge of manslaughter, the judge sentenced him to a seventeen year term in the state penitentiary. Rogers’ brother asked the judge if he was going to put Rogers on probation in accordance with his promise, but the judge denied the promise and said that he would not put him on probation. The judge then stated that he had tried to help, “but if you don’t want to be helped, I’ll leave it just like it is.” This Court construed these words to mean that the life sentence would stand if he did not plead guilty to manslaughter. Relief was granted Rogers, not because of the belated appointment of counsel, but because his plea of guilty was induced by the judge who accepted the plea.

A defendant charged with a capital offense may plead guilty or not guilty, and the court may either accept the plea of guilty or decline the plea and put the case to trial on the merits. A plea of guilty will not bind the defendant unless it is entirely voluntary and made by one competent to know the consequences. Such plea is not voluntary if induced by fear, misapprehension, persuasion, promises, or inadvertence. It is the duty of the trial judge to see to it that the guilty plea is voluntary. * * * * And in a capital case proper advice by counsel is a prerequisite to a binding plea of guilty. (243 Miss, at 228, 136 So.2d at 335) (Emphasis added).

“Proper advice” by counsel means that absent a knowing and intelligent waiver of the right to counsel, a defendant should be given such time to consult with his attorney as is demanded by the particular facts of each case. In Rogers there could be no proper advice by counsel because the prearranged guilty plea, itself lacking volun-tariness, precluded any advice by counsel. On these facts the Court considered the appointment of counsel a formality tantamount to no appointment:

We said in the recent case of McKenzie v. State, 233 Miss. 216, 101 So.2d 651, that: “The duty of the court to assign counsel to defend one accused of a capital crime who is himself unable to employ counsel was not intended to be a mere empty formality; it means more than the mere appointment of counsel.” (243 Miss, at 229-30, 136 So.2d at 336).

In McKenzie v. State, 233 Miss. 216, 101 So.2d 651 (1958), nine attorneys were-appointed to defend McKenzie but not one of them conferred with him in preparation for his trial; hence, the appointment was an empty formality. The question of belated appointment of counsel did not arise in McKenzie because his attorneys were appointed long before the trial.

By way of summary, Rogers’ plea of guilty was not reversed because only thirty-five minutes elapsed between appointment of counsel and his guilty plea, but because the guilty plea had been induced by the conduct of the trial judge prior to the appointment of counsel. For this reason the plea was not voluntary and the subsequent appointment of counsel was “a mere formality.” Clearly, Rogers involved prejudice in addition to the belated appointment of counsel and is not authority for the proposition that belated appointment of counsel is per se a denial of the right to effective counsel.

The United States Supreme Court has refused to hold that the tardy appointment of counsel.is per se a denial of the right to effective counsel. Addressing the issue in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court said :

Unquestionably, the courts should make every effort to effect early appointments of counsel in all cases. But we are not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel or to hold that, whenever a habeas corpus petition alleges a belated appointment, an' evidentiary hearing must be held to determine whether the defendant has been denied his constitutional right to counsel. (399 U.S. at 54, 90 S.Ct. at 1982-83, 26 L.Ed.2d at 430).

The federal circuits have split in their respective interpretations of Chambers and the weight that tardiness of appointment is to have upon a claim of ineffective counsel. The Fourth Circuit presumes that a belated appointment results in a denial of the right to the effective assistance of counsel and requires the state to prove that the defendant was not prejudiced by the tardy appointment. Garland v. Cox, 472 F.2d 875 (4th Cir. 1973), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Fields v. Peyton, 375 F.2d 624 (4th Cir. 1967); Cole v. Slayton, 378 F.Supp. 364 (W.D.Va.1974). The Fourth Circuit’s rule has been rejected in most of the federal circuits in favor of a “totality of the circumstances” approach requiring that the prejudice appear from the record or from evidence introduced in behalf of the defendant. Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975); Rastrom v. Robbins, 440 F.2d 1251 (1st Cir. 1971), cert. denied, 404 U.S. 863, 92 S.Ct. 53, 30 L.Ed.2d 107 (1971); Moore v. U. S., 432 F.2d 730 (3rd Cir. 1970); Mosley v. Dutton, 367 F.2d 913 (5th Cir. 1966), cert. denied, 387 U.S. 942, 87 S.Ct. 2074, 18 L.Ed.2d 1328 (1967); U. S. v. Wight, 176 F.2d 376 (2nd Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950). In these circuits, where the belated appointment of counsel has not resulted in a prejudice other than the fact of conviction, the claim of ineffective counsel has been denied. Konvalin v. Sigler, 431 F.2d 1156 (8th Cir. 1970); U. S. v. Wight, supra (15 minute conference with appointed counsel prior to entry of guilty plea). More often than not, cases granting relief to a defendant under either of these rules have involved prejudices in addition to belated appointment of counsel. See Wolfs v. Britton, supra where counsel was not allowed an adequate time to examine witnesses, prepare an insanity defense, or have an adequate psychiatric examination of his client; Rastrom v. Robbins, supra, in which an inexperienced attorney was not given time to prepare the case or submit his client for psychiatric examination; Fields v. Peyton, supra, where counsel failed to question the defendant about an improperly charged offense; Mosley v. Dutton, supra, in which counsel offered no witnesses in behalf of the defendant and perfected no appeal from his conviction.

We believe that the “concern over short preparation time does not need to be institutionalized in the form of a presumption.” Rastrom v. Robbins, supra, at 1254. While an eleventh hour appointment is one factor on the question of effectiveness of counsel, we do not hold that this fact, standing alone, amounts to a per se denial of the right to effective assistance of counsel. Neither will a guilty plea be set aside solely because counsel was appointed at a late hour. The prejudice resulting from a belated appointment of counsel must appear from the totality of the circumstances of the individual case.

When this case is examined in its entirety, it is clear that petitioner was not prejudiced by the appointment of counsel a few minutes before arraignment. The petitioner admitted that he was guilty, and acknowledged that he voluntarily pleaded guilty with knowledge of the consequences of his plea. Further, the plea was entered after a conference, albeit a brief one, with counsel. There is simply no evidence of prejudice to sustain the claim of ineffective counsel. While committed to the principle that the right to effective counsel should not be an illusive right, apparent rather than substantial, we do not find inadequate assistance of counsel where counsel’s assistance was spurned by petitioner in favor of an admission of guilt.

As an aside, we note that no record was made of the guilty plea. Since petitioner’s conviction, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Alexander v. State, 226 So.2d 905 (Miss.1969), have required that the record affirmatively disclose that a guilty plea was knowingly and voluntarily entered. This requirement has not been made retroactive. Brady v. U. S., 397 U.S. 742, 747, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747, 756, n. 4 (1970); Taylor v. State, 285 So.2d 172, 176 (Miss.1973). As to guilty pleas entered prior to Boykin and Alexander, supra, the judge remained under a duty to insure the voluntariness of the plea. In the absence of evidence to the contrary, we assume that he fulfilled his duty. Taylor, supra, at 176-76. Here, our belief that the court insured the volun-tariness of the plea has been reinforced by the petitioner’s own testimony that he knowingly, voluntarily, and intelligently pleaded guilty.

For the reasons stated, the judgment of the Circuit Court denying the petition for writ of error coram nobis is affirmed.

Affirmed.

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

      . The record does not indicate whether the sentences were to be served concurrently or consecutively.

      . Petitioner’s 1942 conviction in Noxubee County for armed robbery and kidnapping was set aside at the March 1974 term of the Circuit Court of Noxubee County on the ground petitioner was not represented by counsel.


text:
    John Charles BATES, Sr. v. Nita O. BATES.
    No. 48496.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Rehearing Denied March 9, 1976.
    Bryan, Nelson, Allen & Schroeder, Gulf-port, for appellant.
    Graves, Riley & Meadows, Gulfport, for appellee.
    Before INZER, SMITH and SUGG, JJ.
   Affirmed as modified.

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


author: SUGG, Justice:

text:
    J. D. BOOKER v. STATE of Mississippi.
    No. 48861.
    Supreme Court of Mississippi.
    Feb. 17, 1976.
    Rehearing Denied March 9, 1976.

      Leon E. Provine, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   SUGG, Justice:

Defendant was indicted for murder and convicted of manslaughter in the Circuit Court of Grenada County. Of the numerous assignments of error urged only one merits discussion.

At the conclusion of the state’s case, defendant moved for discovery of any evidence which the state planned to use in rebuttal. In response to the motion, the state produced a signed typewritten confession which had not been used in its case-in-chief. Following a conference with his counsel, defendant testified that he shot the decedent in self-defense. On cross-examination, the state asked defendant if he denied making a statement contained in the confession which contradicted his prior testimony concerning self-defense. Defendant first denied making the statement, but then asserted that he did not remember making the statement. Over objection, defendant identified the signature to the confession as his own.

In chambers, defense counsel objected to introduction of the confession on the grounds that defendant had not been furnished a copy of the confession prior to trial and that the state had not established that defendant had been informed of his constitutional rights prior to making the statement. The court noted that defense counsel had failed to present 'his pre-trial discovery motion to the court and then admitted the confession into evidence for use as a prior inconsistent statement.

The question is whether the confession of a defendant, inadmissible for the prosecution’s case-in-chief, may be used to impeach the defendant’s credibility when his trial testimony contradicts his prior statements.

The United States Supreme Court has held that the prosecution may use the statements of a defendant, inadmissible in the state’s case-in-chief because of a defective Miranda warning or procedure to impeach a defendant’s testimony. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court held that the statements of a defendant obtained as the result of a defective Miranda warning were admissible for impeachment purposes where the statements contradicted the defendant’s testimony. Chief Justice Burger observed:

The shield provided by Miranda can not be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. (401 U.S. at 226, 91 S.Ct. at 646, 28 L.Ed.2d at 5).

In Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) the trial court ruled inadmissible on the case-in-chief the defendant’s incriminating statements spoken to a police officer after a valid Miranda warning but before the defendant’s requested meeting with his attorney. The defendant then testified contrary to his previous utterances. In rebuttal, the trial court permitted the police officer to testify to the defendant’s prior inconsistent statements. The Oregon Supreme Court held that impeachment by the use of the inadmissible statements violated the defendant’s rights under the Fifth and Fourteenth Amendments to the U. S. Constitution. The United States Supreme Court reversed, holding that the defendant’s prior inconsistent statements obtained in violation of Miranda were admissible for impeachment purposes. The Court pointed out that while a state may as a matter of its own law impose greater restrictions on “police activity,” these restrictions cannot be imposed as a matter of federal constitutional law. A more restrictive rule than one announced by the Supreme Court must rest upon independent state grounds. In permitting this limited use of statements obtained as the result of a defective Miranda procedure, the Court made it clear that involuntary statements and confessions are to remain inadmissible for any purpose:

If, in a given case, the officer’s conduct amounts to an abuse, that case, like those involving coercion or duress, may be taken care of when it arises measured by the traditional standards for evaluating voluntariness and trustworthiness. (420 U.S. at 723, 95 S.Ct. at 1221, 43 L.Ed.2d at 578).

We have held that a defendant may not be impeached by the use of a confession unless it is first shown that the confession was freely and voluntarily given. Ladner v. State, 231 Miss. 445, 450, 95 So.2d 468 (1957). It is only the procedural requirement of first proving volun-tariness that distinguishes our rule from that announced in Harris and Hass. Under either of these rules an involuntary confession remains inadmissible for any purpose whatsoever.

326 So.2d — 50%

We hold, therefore, that if a defendant’s confession is ruled inadmissible because it was given involuntarily, with or without proper Miranda warnings, the confession is not admissible for any purpose. However, if the only objection to use of the confession is that it was obtained as a result of a defective Miranda warning, the state may use the confession to impeach the defendant’s trial testimony without first establishing that the confession was freely and voluntarily given. Oregon v. Hass, supra; Harris v. New York, supra. Ladner v. State, supra, is modified to the extent that it conflicts with this holding. If an objection is lodged on the ground that the confession was given involuntarily, the state must then prove voluntariness in the manner governing voluntariness of a confession sought to be used in the state’s case-in-chief. See Agee v. State, 185 So.2d 671, 673 (Miss.1966), for an outline of the procedure. If the statements are subsequently admitted, a defendant is entitled upon request to have the jury instructed that his contradictory statements may not be used as proof of guilt but may be considered only in passing upon his credibility as a witness.

In the instant case the state was properly allowed to use the confession as a prior inconsistent statement to attack defendant’s credibility. Defendant neither alleged that the confession was involuntarily given nor did he request an instruction on the weight to be accorded the confession. Having found no error, the conviction is affirmed.

Affirmed.

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

      . Miranda v. Arizona, 384 U.S. 436, 467-473, 86 S.Ct. 1602, 1624-1627) 16 L.Ed.2d 694 (1966).


author: BROOM, Justice:

text:
    Kelly COX v. STATE of Mississippi.
    No. 48911.
    Supreme Court of Mississippi.
    Feb. 24, 1976.
    Maynard, Fitzgerald & Bradley, Clarks-dale, for appellant.
    A. F. Summer, Atty. Gen. by Catherine J. Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   BROOM, Justice:

Armed robbery was the offense for which appellant, Cox, was convicted in the Circuit Court of Coahoma County, Mississippi. He was sentenced to twenty years imprisonment and appeals. We affirm.

A bandit armed with a snub-nosed pistol robbed the Lula branch of the Bank of Clarksdale of $24,000 on December 14, 1972. The bank manager and a teller (victims) promptly detailed descriptions of the white male robber to the investigating officers. Viewing the robber at close range during the episode in the well lighted bank enabled the bank employees to describe the bandit, who wore no mask or disguise. Using the descriptions, an FBI artist constructed a portrait of the man and forwarded it to FBI offices in the area. Agents at the Little Rock, Arkansas, office recognized the portrait as that of Kelly Cox. After viewing a lineup including Cox, the two bank employees unequivocally identified him as the man who robbed the bank.

Prior to the lineup, Cox apparently signed a waiver of counsel administered by an assistant United States Attorney. Admission of the waiver into evidence was denied because the assistant attorney was not available at the trial.

Cox argues that the trial court erred in: (1) overruling objections to the testimony relating to the lineup in which he was not represented by counsel, and (2) allowing the in-court identification of him based on the lineup rather than on some independent source. Both arguments are predicated upon Cox’s thesis that the pre-indictment lineup was erroneously conducted.

The right to counsel at a lineup proceeding as held in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967), was thereafter specifically limited to a post-indictment situation in which a lineup is held after the formal initiation of judicial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). This Court has adopted the rule of Kirby and held that the right to counsel does not apply to pre-indictment lineups. Howard v. State, Miss., 319 So.2d 219 (1975); Hobson v. State, 285 So.2d 464 (Miss.1973); Allen v. State, 274 So.2d 136 (Miss.1973); Chandler v. State, 272 So.2d 641 (Miss.1973).

As stated in Howard, supra, any pretrial confrontation is subject to judicial scrutiny, and it appears from the record that such scrutiny was applied in this case. Applicable here is Butler v. State, 217 So.2d 3 (Miss.1968). In Butler, we construed Stovall v. Denno, 388 U.S. 293, 296, 87 S.Ct. 1967, 1969, 18 L.Ed.2d 1199, 1203 (1967), and stated:

the question is whether “the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he [the defendant] was denied due process of law.” 388 U.S. at 302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206. Whether the conduct of the confrontation and its introduction in evidence violates due process of law depends upon the totality of the circumstances surrounding it. (217 So.2d at 6).

Careful consideration of the totality of the circumstances in the present situation leads to the conclusion there was no reversible error in the identification procedures, and Cox’s constitutional rights were not abused by the pre-indictment lineup to which he consented. Testimony on direct and cross-examination of the bank employee victims negates the existence of any suggestive aspect of the lineup methodology. The record shows that 'both bank employees separately and positively identified Cox as the bank robber who intimidated them with the pistol. Two FBI Agents (present at the lineup) testified that Cox was fully advised both of his right to counsel and of his right to refuse to participate, and that he consented to the lineup without threats, coercion or improper inducements. State’s Exhibit No. 3, a photograph taken of the lineup (entered into evidence without objection after the state had laid the proper predicate), also portrays the fairness of the lineup.

Testimony of the state related to the pre-indictment lineup identification was introduced without any specific objection except that (1) the lineup was conducted in the absence of counsel, and (2) the state’s counsel was leading its witness. No objection was made that the testimony was inadmissible on account of its “extrajudicial” nature, such as was condemned in Butler, supra, or Simes v. State, 250 So.2d 705 (Miss.1971). Specific objection (stating the ground) to testimony must be timely made at the trial level in order for such ground to be considered on appeal. Here there was no objection at trial that “extrajudicial” attributes of the testimony in question rendered it inadmissible, and such an objection was, therefore, waived. Norman v. State, 302 So.2d 254 (Miss.1974); Stringer v. State, 279 So.2d 156 (Miss.1973).

Not only does the record establish the absence of any reversible error in the pre-indictment identification, it shows that the state proved an independent source as a basis for the in-court identifications. No showing has been made of anything im-permissibly suggestive in the lineup procedure, or that it tainted the in-court identifications which sprang from independent sources. Absent such a showing, appellant’s contention must fail.

Affirmed.

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


text:
    Francis B. ROBERTS and Clearspun Components, Inc. v. Quitman WILLIAMS, Sr.
    No. 48521.
    Supreme Court of Mississippi.
    Feb. 24, 1976.
    White & Morse, Eldon L. Bolton, Jr., Gulfport, for appellants.
    Strickland & Owen, Gulfport, for appel-lee.
    Before PATTERSON and INZER, P. JJ., and SMITH, J.
   Affirmed as to Clearspun Components, Inc.

Reversed and Judgment Here as to Roberts.

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


author: PATTERSON, Presiding Justice:

text:
    Sam T. ROBINSON v. Wayne BRISCOE.
    No. 49232.
    Supreme Court of Mississippi.
    Feb. 17, 1976.
    Solomon Osborne, John E. Jackson, Jr., Oxford, for appellant.
    Fant, Crutcher, Moore & Spencer, Holly Springs, for appellee.
   PATTERSON, Presiding Justice:

This is an appeal from the Circuit Court of Marshall County which sustained a plea in bar of the appellee, Wayne Briscoe, and dismissed the case against him. The court found the appellant, Sam T. Robinson, had not complied with the requirements of Mississippi Code Annotated section 23-3-45 (1972) wherein “the contestant shall have the right forthwith to file with the circuit court ... a sworn copy of his said protest or complaint, together with a sworn petition . . . .”

The issue before the Court is whether the contestant in an election contest complies with the statute when he files a petition for judicial review and attaches to it an unsworn copy of the protest or complaint filed with the party executive committee. It is the opinion of the Court that all issues presented are controlled by Darnell v. Myres, 202 Miss. 767, 32 So.2d 684 (1947). The statute requires the protest or complaint to be sworn to.

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

Affirmed.

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

SMITH, J., took no part.


text:
    Bertie R. BYRD (Holliday) v. ALLIED CHEMICAL CORPORATION et al.
    No. 48524.
    Supreme Court of Mississippi.
    Feb. 17, 1976.
    Pyles, Cupit & Maxey, Jackson, Prewitt & Braddock, Vicksburg, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Donald V. Burch, Jackson, for appellees.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed on cross-appeal; reversed in part on direct appeal, and remanded to the Commission.

PATTERSON, and INZER, P. JJ., and SMITH, ROBERTSON and SUGG, JJ., concur.


text:
    Claiborne Joseph FAYARD et al. v. Brent F. BOULMAY et al.
    No. 48525.
    Supreme Court of Mississippi.
    Feb. 24, 1976.
    Boyce Holleman, Jim W. Rose, Gulfport, for appellants.
    Page, Mannino & Peresich, Biloxi, for appellees.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON and SUGG, JJ., concur.


text:
    Walter TAYLOR v. Vincent SCARBOROUGH.
    No. 48533.
    Supreme Court of Mississippi.
    Feb. 24, 1976.
    Sekul, Hornsby & Wallace, Biloxi, for appellant.
    Palmer, Stewart & Gaines, Gulfport, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   Affirmed.


text:
    L. C. DUCKWORTH v. STATE of Mississippi.
    No. 48907.
    Supreme Court of Mississippi.
    Feb. 17, 1976.
    Swartzfager & Swartzfager, Laurel, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON and SUGG, JJ., concurring.


text:
    SCOTT FINANCE CORPORATION v. Cecil SIMMONS and Hilda Simmons.
    No. 48474.
    Supreme Court of Mississippi.
    Feb. 24, 1976.
    Danks, Craig & Moss, Bacon & Smith, Jackson, for appellant.
    Creekmore & Beacham, E. Michael Marks, Jackson, for appellees.
    Before GILLESPIE, C. J., ad WALKER and BROOM, JJ.
   Affirmed.


text:
    Donald DEVOUAL v. STATE of Mississippi.
    No. 48834.
    Supreme Court of Mississippi.
    Feb. 17, 1976.
    Brown, Alexander & Sanders, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before INZER, P. J., and SMITH and SUGG, JJ.
   Affirmed.


text:
    Clyde A. ADAMS v. Theodore A. TROSTLE and Ellen Marie Trostle.
    No. 48526.
    Supreme Court of Mississippi.
    Feb. 17, 1976.
    Greaves, Terry & Hunter, Estes & Blackwell, Gulfport, for appellant.
    W. Rayford Jones, Gerald M. Warren, Gulfport, for appellees.
    Before INZER, P. J., and SMITH and SUGG, JJ.
   Affirmed.


text:
    H. H. HENDERSON et al. v. Mrs. Elizabeth Riles STEVISON et al.
    No. 48529.
    Supreme Court of Mississippi.
    Feb. 17, 1976.
    M. M. Roberts, S. Wayne Easterling, Hattiesburg, Horton Hillman, Leakesville, for appellants.
    Walker & Sullivan, Laurel, J. C. Martin, Jr., Waynesboro, for appellees.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.


author: SMITH, Justice:

text:
    BOARD OF TRUSTEES OF the PASS CHRISTIAN MUNICIPAL SEPARATE SCHOOL DISTRICT v. Willie C. ACKER.
    No. 48527.
    Supreme Court of Mississippi.
    Feb. 17, 1976.

      Jason H. Floyd, Jr., Gulfport, for appellant.
    Gerald Blessey, Paul S. Minor, Biloxi, for appellee.
    Before INZER, SMITH and SUGG, JJ.
   SMITH, Justice:

Acker, a schoolteacher, appealed to the Chancery Court of Harrison County from the action of the Board of Trustees of the Pass Christian Municipal Separate School District which had declined, following a hearing, to reemploy him. The hearing had been granted by the Board under the provisions of the Mississippi Public School Fair Dismissal Act [Mississippi Code Annotated sections 37-9-101 through 37-9-113 (1972), which became effective April 25, 1974.]

On April 12, 1974, prior to the effective date of the Act, Acker, through his counsel, requested a hearing before the School Board. Previous requests had not been granted. On April 25, 1974, the Public School Fair Dismissal Act became effective. In the light of the new Act, the Board granted Acker’s request for a hearing and set May 21, 1974, as the date, apparently because a court reported would be available to take the testimony at that time. Acker was notified by letter May 3, 1974. But at the request of Acker, through his counsel, a continuance was granted and the hearing reset for June 3, 1974. The hearing was conducted, the Board declined to reemploy Acker and he appealed, as provided in the Act, to the Chancery Court of Harrison County.

The record of the evidence adduced at the hearing before the Board was duly transmitted to the Chancery Court in its appellate role. When the case came on for hearing before the chancellor a hearing de novo was granted as required by the terms of the statute. However, the chancellor overturned the School Board’s action and ordered Acker’s reemployment basing his decision on the proposition that there had been a departure by the Board from procedures set up in the Public School Fair Dismissal Act. From this action on the part of the chancery court the Board has appealed here. While Acker’s appeal from the Board’s action was pending in the appellate court (chancery court) he filed in the appeal case a new and original action seeking, among other things, damages from the School Board. On Motion, the chancellor dismissed this bill and from his action in doing so, Acker has cross-appealed.

Dealing first with the cross-appeal, we hold that the chancellor correctly refused to permit the filing of a new and' original suit in the pending appeal case and in striking the bill. The case, on cross-appeal, is affirmed.

On direct appeal, it is urged on behalf of Acker that the failure of the Board to comply with procedural requirements of the Public School Fair Dismissal Act, including its failure to act within seven days as provided in the Act, was fatal to the Board’s power to confirm the decision not to reemploy him. The enactment of the new statutory procedures which became effective in the course of the dealings between Acker and the School Board, which already were in progress, in the absence of a showing of bad faith, requires that some indulgence be granted the Board in its efforts to comply administratively with the requirements of the new statute.

On May 21, 1974, Acker, through his counsel, requested that the matter be continued, this was granted and the hearing was reset for June 3, 1974. It appears, therefore, that a considerable part of any resulting delay was occasioned by Acker himself. We do not think, under the peculiar circumstances of this case, and in the absence of a showing that any substantial actual prejudice resulted, that there was such a departure from statutory procedure as to deprive the Board of its power to act.

The case must be reversed, however, on direct appeal and be remanded to the chancery court in order that the case may be properly dealt with as an appeal from the action of the Board of Trustees, an administrative body. The chancery court, in its role as appellate court, is limited in cases such as this to a review of the record made before the administrative agency, in this case the Board of Trustees, for the purpose of determining from such record whether the action of the School Board was or was not:

(1) supported by substantial evidence,
(2) arbitrary or capricious,
(3) beyond the power of the administrative agency to make, or
(4) in violation of some statutory or constitutional right of the complaining party. [Mississippi State Tax Commission v. Mississippi-Alabama State Fair, 222 So.2d 664, 665, 666 (Miss.1969)].

Under a provision of the Public School Fair Dismissal Act, contained in Mississippi Code Annotated section 37-9-113 (1972), it is sought to require that the hearing on appeal from the Board to the Chancery Court “shall be de novo”. This violates the Mississippi Constitutional separation of powers. In Mississippi State Tax Commission v. Mississippi-Alabama State Fair, supra, this Court said:

Our Constitution does not permit the judiciary of this state to retry de novo matters on appeal from administrative agencies. Our courts are not permitted to make administrative decisions' and perform the functions of an administrative agency. Administrative agencies must perform the functions required of them by law. When an administrative agency has performed its function, and has made the determination and entered the order required of it, the parties may then appeal to the judicial tribunal designated to hear the appeal. The appeal is a limited one, however, since the courts cannot enter the field of the administrative agency. The court will entertain the appeal to determine whether or not the order of the administrative agency (1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party. This rule has been thoroughly settled in this state. See Loftin v. George County Board of Education, 183 So.2d 621 (Miss.1966); City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48 (1951); California Co. v. State Oil & Gas Board, 200 Miss. 824 27 So.2d 542 (1946); suggestion of error overruled, 200 Miss. 824, 847, 28 So.2d 120 (1946).
[222 So.2d at 665, 666].

On direct appeal the case will be reversed and remanded to the Chancery Court for a review of the record made at the administrative hearing before the Board of Trustees. On cross-appeal the action of the chancellor in dismissing the original bill filed in the appeal proceedings is affirmed, such dismissal, however, being without prejudice to the right to refile in the proper tribunal.

On direct appeal reversed and remanded. On cross-appeal affirmed.

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


author: ROBERTSON, Justice:

text:
    The INDIANA NATIONAL BANK v. Henry ROBERTS.
    No. 48488.
    Supreme Court of Mississippi.
    Feb. 17, 1976.
    Yerger Morehead, Greenwood, for appellant.
    Eaves & Eaves, Louisville, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice:

The Indiana National Bank, a national banking corporation organized under the laws of the United States, brought suit in the Circuit .Court of Winston County against Henry Roberts to recover a balance of $400.42 due on a promissory note executed by Roberts to the Bank on September 1, 1971, and due twelve months after date.

Roberts filed a motion to dismiss on the ground that the Bank was a foreign corporation not qualified to do business in Mississippi and, therefore, not entitled to maintain this action. The lower court sustained the motion to dismiss and dismissed the suit.

.The Bank assigns as error the dismissal of its suit. The Bank contends that it is a national banking corporation organized and existing under the laws of the United. States and, therefore, not subject to the prohibition of Mississippi Code Annotated section 79-3-247 (1972), which section provides in part:

“No foreign corporation transacting business in this state without a certificate of authority shall be permitted to maintain any action, suit or proceeding in any court of this state.”

The Bank is correct in its contention.

12 U.S.C. § 24 (1970) provides in part:

“Corporate powers of associations.
“Upon duly making and filing articles of association and an organization certificate a national banking association shall become, as from the date of the execution of its organization certificate, a body corporate, and as such, and in the name designated in the organization certificate, it shall have power—
“Fourth, To sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons.” (Emphasis added).

Probably because this language is so clear and explicit, this Court has not been called upon to construe it. However, the courts of some of our sister states have construed this language.

Unanimously, other state courts have held that a statute, similar to Mississippi’s, prohibiting a foreign corporation not qualified to do business in the State from maintaining any action in any court of the State, does not apply to a national banking corporation. See State National Bank of Connecticut v. Laura, 45 Misc.2d 430, 256 N.Y.S.2nd 1004 (Westchester County Ct. 1965); Bank of America, National Trust & Savings Ass’n v. Lima, 103 F.Supp. 916 (D.C.Mass.1952); First National Bank of Tonasket v. Slagle, 165 Wash. 435, 5 P.2d 1013 (1931). The United States Court of Appeals for the Ninth Circuit reached the same conclusion in Steward v. Atlantic National Bank of Boston, 27 F.2d 224 (1928).

The judgment of the lower court dismissing the action of the Bank is reversed and this cause remanded for a trial on the merits.

Reversed and remanded.

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


author: GILLESPIE, Chief Justice:

text:
    William STEGALL et al. v. Rev. Mike NEWSOM et al.
    No. 48304.
    Supreme Court of Mississippi.
    Feb. 17, 1976.

      Keeton, Cofer & Embry, Grenada, for appellants.
    D. Briggs Smith, Jr., C. Cliff Finch, M. Collins Bailey, Batesville, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM, JJ.
   GILLESPIE, Chief Justice:

Reverends Mike Newsom, Frank Williamson and J. E. Sandy, Trustees of the First United Pentecostal Church of Grenada, Mississippi, hereinafter local church, filed a bill of complaint in the Chancery Court of Grenada County against William Stegall, Jane Rogers, William Briscoe and First Pentecostal Apostolic Lighthouse of Grenada. The bill sought to enjoin the defendants from using certain property belonging to the local church and to have a certain deed from defendants Stegall, Rogers and Briscoe “as present trustees of the church proptrty” conveying the subject property to First Pentecostal Apostolic Lighthouse of Grenada, declared null and void. The bill also sought exclusive possession of the subject property. The court, in its final decree (1) cancelled the deed to the First Pentecostal Apostolic Lighthouse of Grenada, a corporation, and (2) enjoined the defendants from using the property in any way and ordered possession to be given to complainants.

Prior to November, 1966, there existed in the City of Grenada, Mississippi, the First United Pentecostal Church of Grenada, Mississippi, under the pastorship of appellant William Stegall. Stegall and his congregation were interested in buying from J. O. and Vera B. Smith a building and lot to be used as their church. The purchase price of the property was $7,500, but Stegall and his congregation did not have enough money for a down payment. He sought the assistance of appellee Mike Newsom, who, at that time, was secretary-treasurer of Section 3 of the Mississippi District of United Pentecostal Church International, hereinafter international church. An agreement was reached whereby the Home Missions Department of the Mississippi District of the International Church decided to accept the local church as a new Home Missions project and advance $3,500 to be used as the down payment on the purchase price.

The agreement was executed, and on November 15, 1966, a deed was prepared. The pertinent portion of the deed is as follows :

For and in consideration of TEN DOLLARS ($10.00) cash in hand paid, and other good and valuable consideration, the receipt and sufficiency of all of which is hereby acknowledged, we, the undersigned J. O. SMITH and wife, VERA B. SMITH, do hereby convey and warrant unto R. L. TOLBERT, MIKE L. NEWSOM, and E. J. EL-LARD as Trustees of the First United Pentecostal Church of Grenada, Mississippi, and their successors in office, the following described land and property situated in the County of Grenada, State of Mississippi. . .

A deed of trust securing the balance of the purchase price was executed by Tolbert, Newsom and Ellard on October 28, 1966. The balance of the purchase price was paid off by the local church.

At the time of the execution of the deed and deed of trust, Tolbert, Newsom and Ellard were not, and never have been, members of the local church; they were sectional officers of the international church, namely: presbyter, secretary-treasurer and home missions director respectively.

On February 12, 1971, the local church voted to withdraw from the International Church. On February 22, 1971, the local church voted to seek a state charter of incorporation under the name, First United Pentecostal Apostolic Lighthouse of Grenada. The charter was granted on April 27, 1971. On May 26, 1972, appellants Stegall, Rogers and Briscoe, purporting to be the successor trustees to the trustees named in the November IS, 1966 deed, conveyed the same property to the newly incorporated First United Pentecostal Apostolic Lighthouse of Grenada. Stegall, Rogers and Briscoe claim to have been elected trustees by the local church; however, at the trial they did not produce any church minutes to that effect.

On October 1, 1973, appellees Newsom, Williamson and Sandy, claiming to be the successor trustees to those named in the November IS, 1966 deed, filed in the Chancery Court of Grenada County a suit resulting in the relief and judgment aforesaid. Newsom, Williamson and Sandy claim to be successor trustees by virtue of their present positions as sectional officers of the International Church.

We first consider the question whether the trial court erred in cancelling the deed to the new church corporation.

The constitution of the International Church recognizes that a local church may withdraw its membership from the International Church and provides in Article XVII, section 1, subsection 6, as follows.:

6. Any church desiring to withdraw its membership from the United Pentecostal Church must abide by the following procedure :
(a) Arrange for and announce a business meeting for said purpose at least ten days in advance of said meeting. The same shall be announced at three regular public services.
(b) Advise and invite the District Superintendent and District Presbyter to speak as representatives of the district at said meeting.
(c) In the event a church decides to take steps to withdraw its membership in the United Pentecostal Church, no words derogatory to the United Pentecostal Church shall be spoken by the pastor, and no words derogatory to the church and pastor shall be spoken by an official of the United Pentecostal Church.
(d) After a fair representation of both the church and district is heard, then a majority vote of legal members of the church present voting shall be the deciding factor.

Article XI, section 16, regulates the investment of funds for property and subsection 4 provides in part as follows:

All loans and grants from the United Pentecostal Church, whether from the General Home Missions Division, or District Home Missions Department must be secured by an attachment or lien to the property deed. The attachment or lien should stipulate that if such church agrees to withdraw or fellowship be terminated with the United Pentecostal Church for any reason, or be dissolved, the said church through its duly elected board of trustees and pastor must pay the unpaid balance of loans and the full amount of grants immediately or make arrangements to do so to the satisfaction of the District Home Missions Department or the General Home Missions Division.

The Mississippi District of the International Church has a district constitution and bylaws. Article VIII, section 2, subsection 1, provides as follows:

Any property obtained by any unified efforts of the District Home Missionary Department shall be held in trust by the presbyter, the sectional secretary-treasurer and the sectional home missions director of the section in which the project is launched until such time as the church is established, set in order and local trustees are duly elected. Further, the transfer to the local congregation must have the endorsement of the Mississippi District Home Missionary Board. »

Because the congregation at Grenada was already organized at the time of the deed by J. O. Smith and wife to R. L. Tol-bert, Mike Newsom and E. J. Ellard, as trustees of the First United Pentecostal Church of Grenada, and their successors in office, it appears that the parties did not follow the requirements of the international constitution which provides that grants must be secured by a “lien to the property deed.” Nothing was said in the deed about the lien for the benefit of the International Church. Nor was the constitution of the Mississippi District followed which provides that any property obtained by any unified efforts of the District Home Missionary Department shall be held in trust by the presbyter, the secretary-treasurer, and the sectional Home Mission Director until such time as the church is established, set in order and local trustees are duly elected. Instead the property was deeded to Tolbert, Newsom and Ellard “as trustees of the First United Pentecostal Church of Grenada, Mississippi, and their successors in office.” In other words, the three named persons took title as trustees for the local congregation, not for the Mississippi District. The Mississippi District constitution provides that transfer to the local congregation must have the endorsement of the Mississippi District Home Missionary Board. It appears that since Tolbert, Newsom and Ellard took title as trustees for the local church, they only partially followed the constitution of the Mississippi District, and at the same time, by taking title as trustees for the local congregation, recognized that the local congregation was the beneficial owner of the property.

We are of the opinion, however that under Article XI, section 16, subsection 4 of the International Church’s constitution, the local church held title to the property subject to the right of the International Church to be repaid the amount of the grant made at the time the property was purchased. For this reason and because the local church has not withdrawn its membership from the International Church in accordance with Article XVII, section 1, subsection 6 of the International Church’s constitution, the trial court correctly can-celled the deed to the First Pentecostal Apostolic Lighthouse of Grenada.

The next question is whether the court erred in ordering possession of the property given to the complainants and enjoining use of the church by the local congregation. In our opinion, upon cancellation of the deed, the title to the property stood in the name of the original trustees, or their successors, as trustees for the local congregation. The local congregation never withdrew as provided by the constitution ot the International Church. But the property was originally acquired by Tol-bert, Newsom and Ellard as trustees for the local church, and the members of the local congregation paid off the deed of trust and have invested more into the building than the original grant from the International Church. The trustees holding title for the benefit and use of the local congregation cannot repudiate the trust and deny possession to the congregation for whom they took title as trustees.

Therefore, we hold that the trial court erred in granting possession of the church property to the complainants and enjoining the defendants or the members of the local congregation from using the property.

What is said herein is without prejudice on the part of the local congregation to proceed under Article XVII, section 1, subsection 6, and to withdraw from the International Church. Such course of action, however, will be subject to Article XI, section 16, subsection 4 of the constitution of the international church. Of course, if the majority of the congregation votes not to withdraw the church continues as a local congregation of the international church.

As a civil court, we, of course, could not and do not consider or decide any question of ecclesiastical law or church doctrine; therefore, our decision is in accord with Maryland and Virginia Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970).

The decree of the trial court is affirmed insofar as it cancels the deed in question, but that part of the decree granting possession of the property to the complainants and enjoining use thereof by the defendants or the local congregation is reversed and judgment entered here denying such relief.

Affirmed in part, reversed in part, and rendered.

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


text:
    HARTFORD FIRE INSURANCE COMPANY et al. v. PRODUCER’S GIN OF HERNANDO, INC.
    No. 48501.
    Supreme Court of Mississippi.
    Feb. 24, 1976.

      Watkins & Eager, James L. Carroll, Jackson, for appellants.
    Walker, Franks, Rone, Bridgforth & Woods, Hernando, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice:

Producer’s Gin of Hernando, Inc., plaintiff (bailee), filed suit in the Circuit Court of DeSoto County to collect the market value of cotton destroyed by fire and insured under four policies of fire insurance issued by Hartford Fire Insurance Company, The Home Insurance Company, New Hampshire Insurance Company and United States Fidelity & Guaranty Company, defendants. Defendants appeal from, a judgment awarding plaintiff the market value of the cotton as of the time of loss. We affirm.

Chief issues presented are: (1) Where is the venue of an action against a foreign insurance company when service of process is upon the company’s resident agent for process? (2) May a bailee insure in his own name and recover the whole loss of property of another in his possession ? (3) Is the liability of defendants limited to the price at which bailors had contracted to sell insured property to third parties, or do the terms of the insurance policies involved govern as to the liability of defendants?

On October 3, 1973, plaintiff obtained four separate policies of fire insurance in its own name on baled cotton it held as a bailee for the growers (bailors) of the cotton. Each policy provided a maximum coverage of $12,500, required a premium of $198, and covered a period of two months. On October 29, 1973, thirty-one bales of the insured cotton were destroyed by fire at plaintiff’s warehouse in DeSoto County. The market value of the cotton at the time of loss was 78.45 cents per pound. In January 1973, prior to issuance of the policies to plaintiff, the bailors of twenty-five of the thirty-one bales had contracted to sell their cotton to third parties for thirty cents per pound.

Plaintiff paid the bailors the market value of the cotton as of the time of loss and filed suit in the Circuit Court of DeSoto County against defendants, foreign insurance companies licensed to do business in Mississippi, to recover the market value of all of the cotton as of the date of loss. Process was served upon the resident agents of defendants, all of whom resided in and were served in Hinds County. Defendants filed their respective answers, alleging as a first defense that venue did not belong in DeSoto County. On the merits, defendants recognized plaintiff’s right to recover for both its interests as a bailee (handling charges) and for the bail-ors’ interests and they agreed to pay market value at the time of loss on the six “uncontracted” bales. As for the remaining twenty-five bales of “contracted” cotton, defendants contended that plaintiff, recovering for the bailors’ interests, could recover no more than the price at which the bailors contracted to sell the cotton— thirty cents per pound.

Sitting without a jury, the Circuit Court held that venue was properly in DeSoto County and that the proper measure of damages was the market value or replacement value of the cotton at the time of the fire. By stipulation that value was fixed at 78.45 cents per pound.

I.

Mississippi Code Annotated section 11-11-7 (1972), governing venue of suits against- insurance companies, is divided into two parts. Except for changes in punctuation, the first part of section 11-11-7 has remained unchanged since it first appeared in the Revised Code of 1880. It provides:

Actions against insurance companies, groups of insurance companies or an insurance association may he brought in any county in which a loss may occur, or, if on a life policy, in the county in which the beneficiary resides, and process ' may be sent to any county, to he served as directed by law. Such actions may also be brought in the county where the principal place of business of such corporation or company may be. In case of a foreign corporation or company, such actions may be brought in the county where service of process may be had on an agent of such corporation or company ....

Under this part, if process is served on a foreign insurance company’s resident agent for process the foreign insurance company may be sued in any one of three places: in the county where the loss occurred, in the county where the beneficiary resides, if on a life insurance policy, or in the county where the resident agent is served. In our jurisprudence, for venue purposes a foreign corporation designating a resident agent for process is treated no differently than a domestic corporation. Mississippi Code Annotated section 11-11-3 (1972); Sanford v. Dixie Constr. Co., 157 Miss. 626, 635, 128 So. 887 (1930).

Fireman’s Fund Insurance Company v. Cole, 169 Miss. 634, 152 So. 872 (1934), and Thompson v. Commonwealth Life Insurance Company, 198 Miss. 515, 23 So.2d 539 (1945), relied upon by defendants, are unavailing to them. Fireman’s Fund held that if process is served on the state insur-anee commissioner under the second part of section 11-11-7, venue is in the county where the loss occurred or the plaintiff resides. The Court specifically declined to say where venue lay when service of process was upon the resident agent of a foreign insurance company because the plaintiff in that case admitted that the recipient of process in the county where suit was filed was not an agent of the defendant. Thompson did not answer this question but did hold that a foreign insurance company could be sued in the county where its resident agent for process was served.

In our judgment the lower court correctly ruled that service of process upon the resident agents allowed venue to attach in the county where the loss occurred.

II.

The law is now well settled that when one has the custody, care or possession of property for another as bailee, he may, although he has no pecuniary interest therein and is not responsible for its safe keeping, insure it in his own name for the benefit of the owners, and, recover the whole loss. California Ins. Co. v. Union Compress Co., 133 U.S. 387, 10 S.Ct. 365, 33 L.Ed. 730 (1890); Penn v. Commercial Union Fire Ins. Co. of New York, 233 Miss. 178, 101 So.2d 535 (1958); Hope Oil Mill, Compress and Mfg. Co. v. Phoenix Assurance Co., 74 Miss. 320, 21 So. 132 (1896).

III.

Defendants concede that plaintiff, as bailee, may recover cash value for the six bales of cotton which had not been sold by bailors. Nevertheless, they contend that, on the remaining twenty-five bales of cotton, plaintiff may recover no more than the price at which bailors contracted to sell the cotton.

Each of the policies contains the following provisions:

$12,500.00 on Baled and Un-baled Cotton, Seed Cotton, Cotton Seed, Baled Motes, Bagging and Ties, including sacks and packages containing same, owned or held in trust by insured, or for which insured may be liable (except as hereinafter excluded), .
does insure the insured named in the Declarations and legal representatives, to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, . . . nor in any event for more than the interest of the insured,

Defendants argue that to allow recovery of the cash value of the cotton at the time of the loss would place the bailors in a better position than they would have been had there been no fire. This argument overlooks the fact that a bailee may insure property entrusted to him for the cash value, and points only to the interest of the bailors, who, more than nine months before the loss, contracted to sell all cotton produced on designated farms to purchasers for 30 cents per pound. The contract provided for delivery of the cotton by the bailors. They were unable to deliver the cotton because of th'e intervening fire which destroyed the cotton. The purchasers were interested in having the cotton delivered at the contract price because they had purchased it more than nine months earlier at a lesser price. Without deciding whether or not bailors would be required to deliver cotton destroyed by fire, not due to their negligence, the fact remains that the cotton had a cash value of 78.45 cents per pound at the time it was destroyed by fire.

The policies of insurance were contracts whereby the defendant insurance companies agreed to pay the cash value of the cotton at the time of loss. Who will ultimately collect the proceeds of the insurance policies is of no consequence to defendants whose contracts were with the bailee, not with the bailors or purchasers.

Defendants also maintain that the provision of the policy “nor in any event for more than the interest of the insured” limits the interest of plaintiff, as bailee, to the interest of bailor. In Penn, supra, the Court pointed out that the standard fire policy there involved and the entire language dealt with and pointed to insurance on property rather than on liability. The same principle applies to this case. The question is not the liability of plaintiff, as bailee, to bailors, and bailors to purchasers, but the construction of insurance contracts between plaintiff and defendants.

Defendants insured cotton against loss by fire and collected the premium therefor. When the cotton covered by the policies was destroyed by fire, defendants were obligated to pay insured for the loss in accordance with the terms of the policies, “actual cash value ... at the time of loss.”

Had the cotton decreased in value from 30 cents per pound from time of sale to 20 cents per pound at time of loss, defendants could have logically argued that their liability was limited to the terms of the policies : cash value at the time of the loss. The policy terms also govern the liability of defendants in the event of an increase in the value of the cotton from time of sale to time of loss: cash value at the time of loss.

Affirmed.

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

SUGG, J., took no part.

      . The stipulation of facts first quotes 78.95 cents per pound and then 78.45 cents per pound. Judgment was for 78.45 cents per pound.

      . The second part of section 11-11-7, with which we are not concerned, provides that if service of process is upon the state insurance commissioner, venue against any insurance company, foreign or domestic, lies in the county where the loss occurred or where the plaintiff resides.

      . In Fireman’s Fund the defendant insurance company maintained that. if process was served upon a resident agent, venue lay in the county where the loss occurred or where the plaintiff resided. In Thompson the defendant urged that regardless of whether process was served upon the insurance commissioner or the resident agent for process, venue lay only in the county where the loss occurred or where the plaintiff resided.


author: GILLESPIE, Chief Justice: -

text:
    MISSISSIPPI GAME & FISH COMMISSION v. Oree D. AINSWORTH.
    No. 48531.
    Supreme Court of Mississippi.
    Feb. 24, 1976.
    A. F. Summer, Atty. Gen. by J. B. Gar-retty, Special Asst. Atty. Gen., Jackson, for appellant.
    Thomas G. Roberts, Bay Springs, for ap-pellee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   GILLESPIE, Chief Justice: -

This is an appeal by the Mississippi Game & Fish Commission (hereinafter Commission) from the Chancery Court of Jasper County reversing an order of the Commission and the Governor of the State of Mississippi, and reinstating Oree D. Ainsworth to his position with the Commission.

The Commission ordered Ainsworth transferred from the position of assistant manager of the Tallahala Game Management Area to manager of the Sunflower Game Management Area. Ainsworth refused to transfer, whereupon a hearing was had before the Commission in accordance with Mississippi Code Annotated section 49-1-23 (1972), resulting in an order recommending to the Governor that Ains-worth be dismissed from employment with the Commission. The Governor thereupon ordered Ainsworth dismissed. Ainsworth appealed to the Chancery Court of the Second Judicial District of Jasper County, where the case was heard on the record made before the Commission. That court found that the Commission acted without authority, its order was not supported by sufficient evidence, and was manifestly arbitrary and capricious. The court reinstated Ainsworth to his position as assistant manager of the Tallahala Game Management Area, together with salary from the date of discharge.

Avery Wood, Director of Conservation for the Commission, recommended Ains-worth to fill a vacancy in the Sunflower Management Area. The Commission agreed and notified Ainsworth, of its decision on October 11, 1973. Mr. Wood testified at the hearing before the Commission that there was nothing unusual about promoting an assistant area manager to area manager and at the time Ainsworth was recommended for transfer, the Commission had approximately four assistant area managers. Wood was of the opinion that it would be an economic advantage to the Commission to transfer someone from the Tallahala Area rather than to hire a replacement outright, and he stated that he planned to recommend to the Commission that the position held by Ainsworth at Tal-lahala Area be not filled after the transfer.

The Commission has no written policy or procedures for recommending promotions or transfers. Wood testified that no political pressure had been brought on him to fire Ainsworth and specifically denied that any politician or outside persons had come to him recommending that he fire Ains-worth. On the other hand, he had had some people come to him and ask him not to transfer Ainsworth.

Ainsworth’s duties covered a multi-county area in the Tallahala Management Area, and would likewise cover a multi-county area if he had accepted the position of manager of the Sunflower Management Area.

Ainsworth testified that when he was officially informed of the transfer he did not know whether he would accept the promotion and transfer because he did not know what the housing situation was; that he made three trips to the Sunflower Management Area and could not find a place to live, although he could find a place at Vicksburg; that after being told he could not work out of the headquarters of the Sunflower Management Area, he decided not to take the position. He admitted that his sole objection to the transfer was that it would cause him personal inconvenience. He further testified that an attorney at Bay Springs called him and told him that three or four people that Ainsworth had arrested in and around Bay Springs “were out to get him.” Ainsworth identified the Governor’s campaign manager in Jasper County as being one of those who wanted him fired. He also stated that a state representative threatened to have him fired because of Ainsworth’s insistence on enforcing the game laws. Two other witnesses testified that they had been told by two different parties that they “were out to get Ainsworth’s job.” There is no proof in the record that any of the parties mentioned by Ainsworth or his witnesses contacted the Commission or any of Ains-worth’s superiors with reference to either firing or transferring him to another area. There was no testimony that the Commission or any of the employees of the Game and Fish Commission knew of anyone trying to bring political pressure to get Ainsworth fired or transferred.

The case presents the following questions for decision:

1. Does Mississippi Code Annotated section 49-1-23 (1972) require the personal attendance of the Governor at the fact-finding hearing before the Commission?

Section 49-1-23, in effect at that time, is as follows:

(1) During the period of the first twelve (12) months after appointment, any employee of the game and fish commission shall be subject to dismissal for just cause at the discretion of the commission. After twelve (12) months service, no employee of the commission shall be subject to dismissal unless charges have been filed with the commission to the governor, showing cause for dismissal of the appointee as an employee of the game and fish commission. A date shall be set for hearing before the commission and the governor and the employee notified in writing of the date of such hearing and of the charges filed. The hearing shall be held not less than ten (10) days after notification to the employee. After hearing, at which the employee shall be entitled to legal counsel, a written order of the governor shall be necessary for dismissal and his decision shall be final, unless the employee shall appeal to the chancery court of the county of his residence within fifteen (15) days after receipt of notice of the final decision of the governor. Any such order of the governor shall be a public record and entitled to inspection as such.
(2) The commission shall have the power to remove, to suspend without pay, to reduce in rank any warden, and to act as a trial board in hearing and passing upon charges against wardens.

Ainsworth contends that the Governor is required to be in personal attendance at the hearing because the statute states “A date shall be set for hearing before the Commission and the governor and the employee notified in writing of the date of such hearing and of the charges filed.” We are of the opinion that the hearing is before the Commission and not before the Commission and the Governor. The sentence in question requires the Governor and the employee to be notified in writing of the date of such hearing and of the charges filed, but it does not require the Governor to be present in person at the hearing. The Governor’s representative was at the hearing and this is sufficient even if the statute had required the Governor to attend.

2. Was the decision of the Commission and the order of the Governor arbitrary and capricious ?

The evidence on behalf of Ainsworth raises no more than a suspicion that political pressure was brought to bear to transfer Ainsworth out of the Tallahala Area. It is true that according to Ainsworth and his witnesses two persons of considerable political importance stated that they were "out to get Ainsworth fired.” But there is no proof whatever that these threats were communicated to the Commission, the Governor, or to any of Ainsworth’s superiors.

The Commission must have authority to transfer its employees, especially management area personnel, where they are needed and there is ample evidence in this record to justify the Commission in finding that the services of Ainsworth were needed in the Sunflower Area which required his transfer.

The review by the courts of the actions of administrative or executive agencies is stated in many cases, including Mississippi State Tax Commission v. Mississippi-Alabama State Fair, 222 So.2d 664 (Miss.1969), as follows:

Our Constitution does not permit the judiciary of this state to retry de novo matters on appeal from administrative agencies. Our courts are not permitted to make administrative decisions and perform the functions of an administrative agency. Administrative agencies must perform the functions required of them by law. When an administrative agency has performed its function, and has made the determination and entered the order required of it, the parties may then appeal to the judicial tribunal designated to hear the appeal. The appeal is a limited one, however, since the courts cannot enter the field of the administrative agency. The court will entertain the appeal to determine whether or not the order of the administrative agency (1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party. This rule has been thoroughly settled in this state. See Loftin v. George County Board of Education, 183 So.2d 621 (Miss.1966); City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48 (1951); California Co. v. State Oil & Gas Board, 200 Miss. 824, 27 So.2d 542 (1946), suggestion of error overruled, 200 Miss. 824, 847, 28 So.2d 120 (1946). [222 So.2d at 665, 666].

Therefore, we hold that the order of the Commission and the action of the Governor in dismissing Ainsworth because he declined to transfer was not arbitrary or capricious, was within the statutory authority of the Commission, and in every respect met the test set out in the cited authority.

3. Finally, it is contended that the following sentence contained in section 49-1-13, in effect at that time, prevented the Commission from having the authority to make the transfer: “The warden appointed in each county shall be an actual bona fide resident citizen of such county.” We find it unnecessary to decide whether this sentence prevents the Commission from transferring wardens. The statute, in effect at that time, provided for game wardens and management area personnel. Miss.Code Ann. § 49-1-17 (1972). Game Management Area personnel work in mul-ti-county areas and cannot be limited to work in any particular county.

For the reasons stated, the judgment of the court below is reversed and judgment rendered here reinstating the order of the Commission and the Governor discharging Ainsworth.

Reversed and order of the commission and governor reinstated.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ.,-concur.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. James WILLIAMS.
    No. 56523.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      Bernard E. Fulghum, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

By bill of information the District Attorney for Orleans Parish charged James Williams, Alvin Ford and Robert Harris with theft of an automobile having a value of $425. Ford and Harris pled guilty. Williams was tried, found guilty as charged and sentenced to serve two years at hard labor in the custody of the Department of Corrections.

Ten days later Williams was charged as a multiple offender. Upon a showing by the State that defendant had three prior felony convictions, his two-year sentence was vacated and he was sentenced as a multiple offender to 25 years at hard labor in the custody of the Department of Corrections.

On this appeal Williams assigns four errors upon which he relies to set aside his conviction and sentence.

Assignment No. 1

Officer Charles Matt testified on behalf of the State that on September 10, 1974, around 6:15 in the morning, he and his partner received a complaint over the police radio that three people were stripping' a vehicle in the rear of the Pecan Grove Apartments. They proceeded to the location and stopped a distance away in an inconspicuous location to observe the activity. After obtaining a good description of the participants, they approached Williams, Ford and Harris.

As they drew near, Ford was carrying a tire he had removed from the vehicle into a wooded area behind the apartment, and Harris was in the process of removing the car’s battery. When the officers reached the vehicle, Officer Matt asked Williams what he was doing by the car and, according to the officer, Williams said “he was fixing it; it was his friend’s car.”

The officers obtained the car’s license number, checked and ascertained that the owner was Mae Hill. She was contacted by another officer who learned from her that she believed her car was in front of her house, and she had given no one permission to use it. When told it was not there, she said it had apparently been stolen overnight.

Prior to Officer Matt’s testimony concerning his conversation with Williams, anticipating that the officer may testify to Williams’ conversation, defense counsel objected to “any statements of any matter that may or may not be considered incriminating against the defendant, at this time, by this officer, as there is no advance notification prior to trial.” The Assistant District Attorney readily admitted that, although he intended to do so, he had inadvertently failed to notify the defense that an inculpatory statement would be used as required by Article 768 of the Code of Criminal Procedure. His good faith in this regard is not questioned. The defense objection was overruled by the trial judge, and the ruling was objected to by defense counsel. This assignment of error is based upon that objection.

Williams’ statement is treated in brief by the defense as inculpatory. He argues that Article 768 requires the State to advise the defendant in writing prior to beginning its opening statement, if it intends to introduce a confession or inculpatory statement in evidence, otherwise the inculpatory statement is inadmissible. He concedes, however, that the requirement of Article 768 is qualified by Article 769 of the Code. Under the terms of Article 769 an inadvertent and good faith omission to mention evidence in the State’s opening statement does not require its rejection if the defendant was not taken by surprise. By the decision in State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970), this court held that a good faith technical violation of Article 768 will only result in rejecting the State’s evidence when the noncompliance has been prejudicial to the defendant.

Further, defense counsel claims that the defense was taken by surprise by the admission of Williams’ statement. This claim of prejudice is not substantiated, however, and therefore does not warrant reversal. See also State v. Coates, 273 So.2d 282 (La.1973).

In his per curiam to this assignment of error, the trial judge stated that he admitted the statement into evidence because the failure to give the notice required by Article 768 was, in his judgment, an honest oversight on the part of the District Attorney, and no prejudice was demonstrated by the defendant.

Aside from these considerations, we cannot view Williams’ statement to Officer Matt that he was fixing his friend’s car as an inculpatory statement as the term has been understood in this Court. In State v. Fink, 225 La. 385, 231 So.2d 360 (1970), an inculpatory statement was- defined as follows: “As used in Article 768, the term inculpatory statement refers to the out-of-court admission of incriminating facts made by a defendant after the crime has been committed. It relates to past events.”

The facts of this case indicate that the transaction involving the theft of the vehicle was in progress at the time the statement was made. The tires and battery were in the process of being removed. It may be that the vehicle had been removed from the owner’s premises a short while before, but, at least insofar as Williams and his companions were concerned, the caper was not complete. Williams’ statement, was not made after the fact of the theft but was made while the theft was in progress. The statement did not relate to past events. It was in fact a declaration incident to the illegal transaction, uttered while it happened. The statement was an impulsive and spontaneous reply of a participant and as such is admissible as res gestae. La.R.S. 15:447-48; State v. Wells, 306 So.2d 695 (La.1975).

Assignment No. 2

Defendant moved for a jury trial on the bill of information charging him as a multiple offender; it was denied by the trial judge. La.R.S. 15 :529.1. The motion is based upon the defense contention that Article I, Section 17, of the Constitution of 1974 unconditionally grants a jury trial to this defendant in criminal cases. The constitutional guarantee referred to provides :

“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury.”

The enhanced penalty under the habitual offender statute is not intended to be gauged by a numerical count of the offender’s crimes, but is imposed because of his successive failures to obey the law. The punishment is for the new crime only, but it is more severe if the defendant is an habitual offender.

In the multiple offense proceeding, the defendant’s guilt is not at issue, and the standard is not “beyond a reasonable doubt” as in the classic criminal trial. By the words of the statute “If the judge finds that he has been convicted of a prior felony . . . the court shall sentence him . . . .” La.R.S. 15:529.1 D. This reference to the judge plainly excludes a jury trial. We have held that a defendant in a multiple offender proceeding is not entitled to a jury trial. State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), reversed on other grounds, 399 U.S. 30, 90 S.,Ct. 1969, 26 L.Ed.2d 409; State v. Guidry, 169 La. 215, 124 So. 832 (1929); State v. Peace, 163 La. 121, 111 So. 621 (1927).

These principles in effect at the time of its adoption make it clear to us that the new constitution refers to “criminal cases” in the sense of a case where the defendant’s guilt or innocence is at issue, a case in which a jury traditionally has a role. The new constitution adds nothing to the old which demands a change in the view this Court has held over the years. A defendant in an enhanced penalty proceeding is still not entitled to a jury trial. It should be added, also, that at the hearing on the charge of multiple offenses, the defendant admitted his commission and conviction of the prior offenses upon' which the enhanced penalty is based.

Assignment No. 3

A motion to quash the multiple offender charges was filed by defense counsel contending: 1) the prosecution (proceeding) should have been instituted by grand jury indictment; 2) after sentence on the guilty verdict the trial court lost jurisdiction and the power to vacate that sentence no longer existed; and 3) the enhanced penalty is cruel and unusual punishment.

1) The defense relies upon the mandate of the Constitution of 1974 which ordains that “Prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury.” La.Const. art. I, § 15 (1974).

It is the defense contention that defendant, as a quadruple offender, faced a maximum punishment of life imprisonment and, therefore, the constitution mandates that the multiple offender charge could only be instituted by the grand jury.

In addition to the clear legislation permitting multiple offender charges to be filed by the district attorney in a bill of information, La.R.S. 15 :529.1 D, we are again convinced, as we were in our consideration of Article I, Section 17, in connection with Assignment of Error No. 2, that the constitution has made no change in the law dealing with multiple offenders. Article I, Section 15, does not require a grand jury indictment to institute a multiple offender hearing. As we have pointed out, an enhanced penalty proceeding is not a prosecution for a crime requiring a grand jury indictment. As a matter of fact, multiple offender charges are not prosecutions for crimes; the charges only involve enhanced penalties on account of crimes for which the defendant has previously been convicted. Multiple offender proceedings do not, therefore, fall within the contemplation of the constitutional reference to prosecution for a “capital crime or a crime punishable by life imprisonment.”

2) In contending that the trial court lost jurisdiction after imposing the two-year sentence, and, for that reason, was without authority to impose an enhanced penalty, defense counsel seeks to distinguish this case, where the enhanced penalty sentence was imposed after the two-year sentence, from the decision in State v. Kennedy, 255 La. 295, 230 So.2d 818 (1970), where the multiple offender proceeding was held to be properly instituted after conviction but before sentencing.

To support this argument counsel contends that the multiple offender statute, La.R.S. 15:529.1 D, is in conflict with Article 881 of the Code of Criminal Procedure. Under the authority of the former, a bill charging the defendant as a multiple offender may be filed at any time after conviction or sentencing, and the judge is given the power to vacate his previous sentence; whereas, Article 881 of the Code of Criminal Procedure grants authority to amend or change the sentence only “prior to the beginning of execution of the sentence.”

The enhanced penalty statute seeks solely to regulate • the multiple offender proceeding, while Article 881 applies to convictions for crimes generally. These statutes prescribe different procedures for different fact situations. The multiple offender statute establishes what may be referred to as an exception to the general rule announced in Article 881. There is no conflict between these statutes. There is no merit to this contention.

3) The claim that the enhanced penalty is cruel and unusual punishment has no merit. Recidivist statutes have been upheld on many occasions against the attack that they involve cruel and unusual punishment. Price v. Allgood, 369 F.2d 376 (5th Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349; State v. Vale, 252 La. 1056, 215 So.2d 811, reversed on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1968).

Assignment No. 4

This assignment asserts that defendant was erroneously convicted as a fourth offender. The argument is that by Article IV, Section 5(E)(1), of the Constitution of 1974 defendant was automatically pardoned for his first offense conviction because he was “never previously convicted of a felony.” By this constitutional pardon, he argues, the pardoned conviction could not be counted in calculating his multiple offenses. He should only be punished as a triple offender, he argues.

Although we have held that offenses pardoned by the Governor cannot be counted as a multiple offense, State v. Childers, 197 La. 715, 2 So.2d 189 (1941); State v. Lee, 171 La. 744, 132 So. 219 (1931); the principle does not apply here. This defendant cannot claim the benefit of an automatic pardon under the Constitution of 1974. His first offense was a 1963 plea of guilty to simple burglary, and Article XIV, Section 23, of the Constitution provides that “All . . . criminal liabilities . judgments, sentences, orders, decrees . . . existing oh the effective date of this constitution shall continue unaffected.” Section 26 of Article XIV reads:

“Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

When these sections are considered in conjunction with the automatic pardon provision of Article IV, Section 5, it becomes apparent that the automatic pardon was to be granted prospectively. We do not believe the drafters of the constitution intended that all 'enhanced penalties prior to midnight, December 31, 1974, the effective date of the new- constitution, were to be upset on the basis of an automatic, retroactive pardon of all first offenses.

For the reasons assigned, the conviction and sentence are affirmed.

      . La.Const. art. VII § 41 (1921) ;
      “The Legislature shall provide for the election and drawing of competent and intelligent jurors for the trial of civil and criminal cases; . . . All cases in which the punishment may not be at hard labor shall, until otherwise provided by law, be tried by the judge without a jury. Cases, in which the punishment may be at hard labor, shall be tried by a jury of five, all of whom must concur to render a verdict; cases, in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom must concur to render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.”

      . La.Const. art. IV, § 5(E)(1) (1974), provides in pertinent part:
      “ . . . However, a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.”