author: COVINGTON, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Henry J. MILTENBERGER et ux.
    No. 11182.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Alvin J. Liska, New Orleans, Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Richard Knight, Talley, Anthony, Hughes & Knight, Bogalusa, for defendants-appel-lees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

In this expropriation proceeding, the State of Louisiana, through the Department of Highways, expropriated two vacant, rectangular shaped, parcels of land situated in St. Tammany Parish, Louisiana, owned by the defendants-appellees, Henry J. Miltenberger and Barbara Ellis Milten-berger, husband and wife. Each parcel fronted on the east side of U.S. Highway 190, about 3V2 miles south of the city of Covington, Louisiana. The two parcels were separated by the entrance to King’s Forest Subdivision, a boulevard entering into a residential area. The parcel lying south of the entrance had a frontage of 343.10 feet on the highway, with a long side (south) depth of 335.00 feet, and contained approximately 108,600 square feet. The north parcel had a frontage of 343.10 feet on the highway, with a long side (north) depth of 282.40 feet, and contained approximately 89,596 square feet. The highest and best use of the property before the taking was for highway commercial purposes.

The expropriation involved a partial taking, the part taken from the south parcel being designated as 3-B-3 and -the part from the north parcel as 3-B-4. After the taking, the south parcel contained approximately 53,700 square feet, having a frontage of 343.10 feet on the new service road, 403.10 feet from the controlled access point. The north parcel was left with approximately 34,700 square feet, having a frontage of 343.10 feet on the new service road, a short distance behind the controlled-access fence.

The subject parcels were taken for the purpose of widening U.S. Highway 190 and for building service roads in connection with controlled access at the interchange of U.S. Highway 190 and Interstate Highway 12.

The Department deposited the sum of $55,704.00 in the registry of the court as the estimated just compensation for the property taken.

In answer to the expropriation proceeding, the defendants placed at issue the value of the property taken, the question of severance damages and damages to improvements.

After trial, the district court found the area of land taken to be 54,911.20 square feet for Parcel No. 3-B-3 and 54,896.00 square feet for Parcel No. 3-B — 4, or a total area of 109,807.20 square feet. The district court determined just compensation to be $0.75 per square foot, or the sum of $82,-355.00 as the value of the property actually taken. Further awards were .made, consisting of $4,735.20 for the improvements and $36,465.00 as severance damages. Thus, a judgment in the total amount of $123,-555.20, subject to credit for the amount deposited, was rendered in favor of the defendants. Expert witness fees of $1,200.00 to Stevenson and $1,500.00 to Pa-tecek were also awarded.

The Department appealed, contesting the amount of the award for improvements, the award of severance damages and the amount of the expert fees. The award for the property actually taken is not contested. The landowners answered the appeal, seeking an increase in the severance damages.

Regarding severance damages, the Department’s complaint is that the trial court erred in awarding them at all in this case, and particularly objects to the trial court basing said award on the testimony of Frank J. Patecek, defendants’ expert.

Based upon Patecek’s report, the trial judge determined that before the taking each parcel had a frontage of 348.10 feet on U.S. Highway 190, with free and unrestricted ingress and egress to the highway along the entire frontage. After the taking, the remainders no longer have frontage on a well-travelled highway; but instead, they now front on a dead-end service road, with mostly local traffic and but a fraction of the vehicular traffic that a major highway would have. The trial court found that this adversely affected the value of the parcels and their use as highway commercial property. In addition, the judge found there would be a control of access between the remainders and the highway. In relation to the highway, the remainders will be situated behind a chain-link fence, an open drainage ditch on the west side of the access road, the access road, and an open drainage ditch on the east side of the road. The judge concluded that these factors considerably decreased the ease of access to the highway from the remainders and increased the difficulty of vehicular traffic on the highway seeing the parcels.

It appears that the depth of both remainders will be reduced considerably, which only emphasizes their irregular shape. The south remainder was left with 53,700 square feet and the north remainder with but 34,-700 square feet.

Taking all of these factors into consideration, the trial judge found that there was a diminution in value to the remainders and that severance damages should be awarded to the landowners. It is interesting to note that Breeding, the Department’s expert, agreed that all of the mentioned factors would have a diminishing effect upon remainders in this situation, yet he found no severance damages, based on his conclusion that the remainders would still be adequate for various commercial uses and that they would benefit from their location in regard to the interchange.

The trial judge stated his conclusions regarding severance damages, based largely on Patecek’s opinion, as follows:

"Because of the location of the remaining parcels with respect to the highway, their size and irregular shape the highest and best use of the remaining property would not be residential but secondary commercial. However, the preponderance of the evidence clearly demonstrates that the secondary commercial value of the property approximates in value the residential property in that vicinity. Therefore, while the best use of the subject property is commercial, its value has been reduced substantially to that of residential property. The use of residential sales as comparables is not inappropriate particularly in view of the absence of comparable sales of similar commercial property. Based on these com-parables, Mr. Patecek's computations shows that the severance damage was at least 55% of the 'before taking' value of the property,
"Mr. Stevenson determined the severance damage to be 60% of the 'before taking' value of the property. He based his determination on numerous adverse factors to the value of the property resulting from the taking. Mr. Stevenson made a further determination that the total cost of curative work on the subject property amounted to $23,010.34. He noted however that a complete cure did not exist for the subject property.
"Based on the preponderance of the evidence and the expert testimony, the Court finds that the severance damage to the remaining parcel amounts to 55% of the 'before taking' value of the property. As noted previously, the 'before taking' unit value of the property as determined by the State's own experts was ,75 cents per square foot. I therefore find severance damage as follows:
Before value of remainder of South tract 53.700 sq.ft. @$.75 sq.ft. = $40,275.00
Severance damage 55 % of 'before taking' value $22,151.25
Before value of remainder of North tract 34.700 sq.ft. @$.75 sq.ft. = $26,025.00
Severance 55 % of 'before taking' value -$14,3_13.75
Total severance damages $36,465.00"

The trial court rejected the Department’s experts’ opinions that no severance damages were owed to the landowners. The judge considered that Deano had erroneously offset the damages to the landowners by a general appreciation in value, and that Breeding’s opinion that the benefits of the location of the remainders would be substantial was not supported by any facts. The trial court also rejected the compara-bles used by the Department’s experts, because they were not sales in the vicinity, but were from another part of the parish, where values were different from those in the Covington area.

Patecek determined that the commercial value of the remainders had so diminished that their diminished value closely approximated residential values in the vicinity. Although Patecek did not testify that the remainders’ highest and best use after taking was “residential”, he did say he determined that the .values would be about the same as residential, Thus, he valued the south remainder at $0,285 per square foot; and the north remainder, $0.30 per square foot. Patecek testified as follows:

“Q. What approach did you take in reaching a severance factor?
A. Well, the fact that it reduced the highest and best use. The highest and best use was reduced from highway commercial to something less than that. Now it is not really good residential. It is not good commercial. It can be used for some types of commercial but not a very good commercial.”
“A. It is an overimprovement now, yes, sir. Well, Lot B, that is the south lot in the subdivision, is approximately 400 feet or more from U.S. 190 and that just about puts it out of it as far as I am concerned, any real commercial value.
It may have some lower type commercial but that would put it in the same class as residential as far as price is concerned.”
“Q. The service road in the subject property is a through road or a dead end?
A. Well actually the service road is a dead end road but there is Helenburg Road and another road. I can’t think of the name of it now. It is in the subdivision. There are two small roads, Slimmer Road and Helenburg Road, that lead off the service road to the back part of the country road out there.
Q. They lead to what, to commercial or residential?
A. Residential.”
* * * * * *
“Q. What is your definition of something less than highway commercial?
A. Just that.
Q. What?
A. It can be, you can use it for, I have been trying to think of something that would want to locate there and I just can’t think of anything.
I have racked my brain to try to think of somebody that would want to buy that piece of property after the taking and use it for some purpose and I can’t.
Q. Well, let me ask you this then: your after value, did you appraise it as something less than commercial or did you appraise it as residential?
A. I appraised, it as something less than commercial using the residential figures because it would be about that price that they would pay for it.
Q. Well, would you say, in your opinion then, is something less than commercial more valuable or less valuable than residential?
A. I just told you I thought they were about the same in this case.”

We find no error on the part of the trial court in adopting the evaluation set forth by appraiser Patecek.

In State, Department of Highways v. Wax, 295 So.2d 833 (La.App. 1 Cir. 1974), writ den., La., 299 So.2d 800. we said:

“It is well settled in our law that where the experts differ, the trial judge is in a better position to determine their credibility and the weight to be accorded their testimony and his decision as to the valuation of property should not be disturbed on appeal unless shown to be manifestly erroneous.”

The record amply supports the trial court’s fixing the award for severance damages in the amount of $36,465.00.

The Department also contends that the trial court erred in fixing the award for improvements at $4,735.20. The appellant considers this to be excessive and asks that the award be reduced to $1,000.00. Its basic position on the question of improvements is that they are not to be valued separately, but are considered as they relate to the value of the enhancement of the land. That is correct. State, Department of Highways v. Strickland, 290 So.2d 714 (La.App. 1 Cir. 1974), writ den., La., 295 So.2d 177.

We note that the figure given as the value of the landscaping plants, $950.00, was arrived at by the appraiser merely looking at photographs of the plants. We find this manner of appraisal of this item unacceptable. It is, accordingly, rejected. This award is also rejected under authority of State, Department of Highways v. Glassell, 226 La. 988, 77 So.2d 881 (1955), which states the general rule that trees and shrubbery are not to be appraised independently of the land. It is only when they have some unique value that such items are valued in addition to the fair market value of the property; State, Department of Highways v. Blair, 285 So.2d 212 (La.1973).

In Strickland, supra at p. 717:

“The inclusion of the trees in the value of the land taken is the method which has always been used in Louisiana, rather than debiting the trees as an item of damage.”

Even though the improvements may have possessed a certain amount of aesthetic value to the landowners, they are entitled to recover only what is required to place them in as good position pecuniarily as they would have been if the property had not been taken. State, Department of Highways v. Ragusa, 234 La. 51, 99 So.2d 20 (1958); State, Department of Highways v. Kornman, 336 So.2d 220 (La.App. 1 Cir. 1976).

Under the jurisprudence, we do not feel that the landowners are entitled to a separate award for the dedicated public road, culvert and entrance way, nor for the columns, electric lamps and posts. However, appellant’s brief, in an ambiguous manner and with an arithmetical error in computation, asks only that that portion of the judgment be reduced to $1,000.00 for the latter three items. Therefore, we reduce the award for improvements to $1,000.00. This will have the effect of reducing the total amount to the landowners from $123,555.20 to $119,820.00, subject to credit of $55,704.00, the amount previously deposited by the Department.

Finally, the Department challenges the award of expert witness fees as excessive. It contends that the fees awarded to Patecek and Stevenson were improper, since they merely conform to the amounts agreed to between the landowners and the real estate appraisers. See State, Department of Highways v. Whitman, 313 So.2d 918 (La.App. 2 Cir. 1975), writ den., La., 319 So.2d 443. However, the fixing of expert witness fees is largely within the sound discretion of the trial court. The law is settled that in order to change the amount awarded as expert witness fees, the appeal court must find that the trial court abused its sound discretion. State, Department of Highways v. Spillman, 276 So.2d 905 (La.App. 1 Cir. 1973).

In fixing such fees, each case turns on its own particular facts. There are certain factors though, that can be used in assessing such fees such as the expertise of the expert, the helpfulness of the expert’s report and testimony to the court, the time spent in preparing his report, the time spent in testifying as an expert witness, and awards to experts in similar cases. The agreement between the landowner and the appraiser may be used as a factor in fixing the fee, but such an agreement can not be the sole criterion used by the court in fixing the expert fee. See State, Department of Highways v. Stegemann, 269 So.2d 480 (La.App. 3 Cir. 1972), writ den., La., 271 So.2d 533 (1973).

The trial court’s reasons for judgment reflect that the judge did not base his expert witness award solely on the agreement between the appraisers and the landowners. The judge concluded that the work involved and their court appearance justified the award. Detailed appraisals were filed in evidence. These appraisals and the appraisers’ testimonies were patently helpful to the trial court in his fixing just compensation. The record fully disclosed that the appraisers studied maps and diagrams, viewed the property, and made detailed studies of sales and transactions incidental to making their appraisals. Each appraiser made an independent and thorough analysis of the pertinent data in order to reach an evaluation of the property and to determine severance damages. They devoted several hours over a span of several days in their preparatory work.

We, therefore, find no abuse of the trial court’s discretion in fixing the expert witness fees.

Appellees ask that this court increase the severance damage award from $36,465.00 to $40,585.50. The trial judge elected to base his computation on a finding that the severed property was damaged to the extent of 55% of the “before taking” value. He chose this method rather than a unit computation of $0,465 X 53,700 square feet for the south remainder and $0.45 X 34,700 square feet for the north remainder, or $24,870.50 and $15,615.00, respectively. There was ample evidence for either approach; we cannot say that the court abused its great discretion.

For the foregoing reasons, the judgment of the trial court is amended to reduce the award for improvements from $4,735.20 to $1,000.00; and, in all other respects, the judgment is affirmed; the Department is cast for all costs for which it is legally assessable.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: BOLIN, Judge. JONES, Judge,

license: Public Domain

text:
    STATE of Louisiana in the Interest of Raymond CAMPBELL.
    No. 13164.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.

      Piper & Brown, by Robert E. Piper, Jr., Shreveport, for appellant.
    James Lynn Davis, Dist. Atty., by Herman L. Lawson, Asst. Dist. Atty., Mansfield, for appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Raymond Campbell was adjudicated a juvenile delinquent based upon a finding that he was guilty of simple burglary in violation of Louisiana Revised Statutes 14:62. He appeals and we affirm.

The inculpatory evidence consisted of a written confession, an oral confession, exhibits consisting of some of the items taken in the burglary, and the testimony of an accomplice. Immediately prior to a hearing on the merits there was an evidentiary hearing on defendant’s motion to suppress the written confession and exhibits. The court overruled the motion to suppress and both the confessions and the exhibits were admitted in evidence at the trial on the merits.

On appeal it is asserted the trial court erred in refusing to suppress the confessions and exhibits. Appellant argues that the confessions were inadmissible because not proved to be freely and voluntarily made as required by Louisiana Revised Statutes 15:451.

The burglary occurred about December 28, 1975. On December 29, 1975 the juvenile was arrested and charged with the burglary, which he then denied, and was released on a bond signed by his mother.

The juvenile was again picked up at about 3:00 p. m., on January 23, 1976, in connection with a charge of discharging a firearm in the city of Mansfield. He was taken to the jail where he was interrogated by several members of the police department about the firearms charge, which he denied. He was again released in the custody of his mother.

Later the same date, at 9:00 p. m., four police officers went to defendant’s home and asked his parents if they could take Raymond to the station for further questioning. The officers requested one or both of the parents to accompany them. The mother agreed to come to the station as soon as she could dress and shortly thereafter she arrived at the station.

Raymond was interrogated in the presence of his mother for about twenty minutes, during which time he consistently denied being involved in either of the offenses about which he was being questioned. The principal interrogator was dissatisfied with the progress of the questioning and asked the mother to go into another room, which she did. The questioning continued and the boy admitted firing the gun; also, he admitted he knew where the gun was hidden. When the mother returned to the room she told Raymond to give the officers the gun if he had it or if he knew where it was. He accompanied the officers to the pasture where.the gun was found covered by some leaves. They returned to the station and Raymond’s mother went home.

The officers continued to question Raymond for an hour or more and he was placed in jail about midnight where he remained until Monday afternoon, approximately 64 hours.

The officers testified he admitted both the firearms charge and confessed to the burglary. They also testified that Raymond received an explanation of his rights as required by the Miranda decision, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Raymond, on the other hand, steadfastly denied he orally confessed to the officers that he was involved in the burglary. He maintained he admitted only to knowing who had the gun and where it was hidden.

On Monday afternoon, January 26, 1976, the juvenile probation officer removed Raymond from the jail and told him the judge had said he could go home but that he (the officer) needed to talk with him first. During this conversation the officer advised Raymond of his Miranda rights. He testified he talked to the boy about five minutes and asked him if he wanted to make a statement; defendant answered affirmatively and wrote his statement or confession to the burglary in the officer’s presence. The form on which the confession is written contains a printed statement of the Miranda rights. Raymond acknowledged he read this printed statement of rights and that he understood he did not have to make any statement or confession. However, he said the officer told him he could go home if he wrote the statement. He claimed the confession was made because of fear that he would have to return to jail if he did not make it. The juvenile officer denied making any promises or imposing any conditions on Raymond’s release in order to obtain the confession.

Appellant urges on appeal the confessions were involuntary and for that reason inadmissible; that the adjudication of delinquency was based on this illegally admitted evidence and should be reversed and set aside. He argues the oral admission or confession was given as a result of threats from the police officers and after hours of continuous questioning out of the presence of his mother or of counsel. He stresses the written confession was involuntary because he gave it after being detained a considerable period of time during which he was without advice of parent or counsel, and after being told he would be released if he would make the statement, all in violation of Louisiana Revised Statutes 13:1577, A.

Appellee urges that the. confessions were voluntary and that-R.S. 13:1577, B and C qualify the mandate of Subsection A and permit the detention in jail of a juvenile over the age of fifteen.

Appellant relies on cases involving violation of R.S. 13:1577. In State, in the Interest of Wesley, 285 So.2d 308 (La.App. 4th Cir., 1973,) the court held a confession inadmissible where it was obtained at two a. m., from a fourteen-year-old child who was taken into custody at eleven p. m., was detained and transported in association with adult offenders in violation of 13:1577(0); was interrogated over three hours in the middle of the night and who did not, during this period of time, have the benefit of counsel of parent, friend, attorney, judge, juvenile probation officer, or anyone else.

Also cited by appellant are the companion cases of State, in the Interest of White, 160 So.2d 344 (La.App. 4th Cir., 1964) and State in the Interest of Garland, 160 So.2d 340 (La.App. 4th Cir., 1964). In Garland a fifteen-year-old boy was taken into custody at 3:15 a. m., by two deputy marshals who had no reason to apprehend defendant except for his presence on the street at that hour. Garland was not released to his parent or custodian although no showing of impracticability or inadvisability had been made. Instead, for more than six hours he was interrogated by the police in the investigation of a series of burglaries allegedly committed by defendant and two other juveniles. At 5:30 a. m., Garland identified White (also age 15) as a companion and the police went to White’s home, awakened him and took him from his home to the jail. White was likewise not dealt with as required by 13:1577. On the contrary, he too was interrogated by the police until about nine a. m., at which time both Garland and White signed the two confessions. Under the facts recited the court concluded the confessions were not freely and voluntarily made and could not be used against the juveniles nor be admitted into evidence under Louisiana Constitution Articles 1, §§ 1 and 2, and United States Constitution, Amendment XIV.

We find no such extreme circumstances in this case as those in Wesley, Garland and White.

In considering the admissibility of the two confessions we will assume, and we are inclined to think rightly so, that the oral confession was involuntarily obtained and should have been suppressed. This is not to say that a juvenile defendant could not make a voluntary oral confession, but under the circumstances of this case the fact that the mother was required to leave the room where the interrogation was taking place and the alleged confession was obtained out of her presence makes that confession suspect.

However, we find the written confession was voluntarily given; that appellant was advised of his Miranda rights; that he read and understood these rights which were printed directly above the body of his confession; that the juvenile probation officer who released Raymond from jail and talked with him at the time of his release made no promises or threats in order to induce Raymond to make the written statement; and that Raymond, a sixteen-year-old junior in high school was of sufficient age and intelligence to realize what he was doing when he wrote his confession.

Finally, Curtis Henderson, who had confessed to the burglary and had served five months in Louisiana Training Institute, testified that he and Raymond committed the burglary together; that they took some money and Raymond took the gun which was identified as the one stolen from the burglarized building and the one which Raymond had fired on January 23, 1976.

Under Louisiana Code of Criminal Procedure Article 921, a judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantive right of the accused, or constitutes a substantial violation of a constitutional or statutory right. State v. Hopper, 253 La. 439, 218 So.2d 551 (1969).

We find the written confession was- properly admitted into evidence, the state having proved the juvenile received and understood the Miranda warnings, and that the confession was free and voluntary and not the product of coercion, maltreatment, or promises. Louisiana Code of Criminal Procedure Article 703; State v. Whatley, 320 So.2d 123 (La.1975).

Finding no prejudicial error, and that the admissible evidence supports the judgment, it is affirmed.

JONES, J., dissents and assigns written reasons.

JONES, Judge,

dissenting:

I respectfully dissent.

The essential facts of this case are not in dispute. The office of the Nabors Oil Company was burglarized on or about December 28, 1975. On December 29, 1975, Raymond Campbell, a 16 year old juvenile, was arrested in connection with that burglary, which he denied committing. The Mansfield Police officers who made this arrest testified the arrest was based upon information provided by an informer who was with the juvenile at the time of the burglary. Raymond was then released on a bond signed by his mother.

On January 23, 1976, Raymond was taken into custody about 3:00 P.M. in connection with the discharge of a firearm within the city of Mansfield. This detention was based upon an eyewitness to the incident advising the Mansfield Police that she saw the juvenile fire the gun. He was taken to the city jail, informed of his rights, and interrogated by several members of the police force. After denying any involvement, Raymond was released some time after 4:00 P.M. and he returned home to his mother.

At this time the Mansfield Police Department had complied with the provisions of LSA-R.S. 13:1577, in connection with their investigation of the burglary charge and the firearm charge, and returned the accused juvenile to his mother as mandated by the statute, since there was no reason it was impractical or inadvisable to do so. Although it appears that the investigation of these two criminal violations had proceeded to a point where the Mansfield Police Department had adequate information to justify their filing a petition with the juvenile court seeking to have the minor Campbell adjudicated a delinquent, they did not do so.

Apparently dissatisfied with the boy’s failure to earlier confess to the two charges, the Mansfield Police Department sent five members of the force to Raymond’s home at 9 P.M. on the same evening where they again took him into custody and returned him to the police station. Raymond was informed of his rights, although there was no indication- whether or not he understood them.

Raymond’s mother arrived at the station shortly after Raymond arrived. In the presence of his mother Raymond was subjected to intensive interrogation for about 20 minutes, conducted simultaneously by five members of the police department. During this period Raymond denied involvement in either the firearm charge or the burglary.

The interrogating officers, becoming dissatisfied with the lack of results from the interrogation, and suspecting Raymond would be more likely to confess out of the presence of his mother, asked Raymond’s mother to leave the room. Although somewhat ambiguous about surrounding events, the police testified that after his mother had been gone from the room about 30 minutes, Raymond admitted both the firearm charge and the burglary.

Raymond was then placed in jail, and remained there about 64 hours. This was in violation of the mandate of LSA-R.S. 13:1577, as there had been no change in circumstances which would indicate Raymond’s appearance at a court hearing would be unlikely, and thus justify his incarceration. It is significant that Raymond had been voluntarily released to his mother a few hours earlier on the firearm charge, and his mother had posted a bond on the burglary charge 30 days earlier and obtained his custody.

Raymond was released to the juvenile probation officer about 3 P.M. on Monday afternoon. The officer took Raymond to an office in the courthouse and talked with him about the burglary. After a discussion, Raymond wrote out a confession to the December burglary of Nabors Oil Company. Neither Raymond’s parents nor any other advisor was present during this time. Additionally, Raymond had not been allowed to speak to his parents since Friday night when he was placed in jail, nor had he ever obtained legal counsel. After writing the confession, Raymond was released to his parents.

The law is clear that a juvenile proceeding is not civil or criminal, but is sui generis. In Re Estate In Interest of Curley, 287 So.2d 558 (La.App., 1st Cir. 1973). Juvenile proceedings are not criminal proceedings and do not involve convictions but rather adjudications of delinquency. In Re State In Interest of Taylor, 255 So.2d 361 (La.App., 1st Cir. 1971). However, a juvenile court delinquency proceeding is required by the due process clause of the Fourteenth Amendment to measure up to the essentials of due process and fair treatment. The juvenile and his parents or guardian must receive constitutionally adequate notice of the hearing, must be informed of the right to counsel, and must be informed of the privilege against self incrimination. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). A confession by a juvenile is likewise required to be voluntary, and not to have been extracted by methods in violation of the due process requirements of the Fourteenth Amendment. Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948).

The State of Louisiana has imposed additional requirements on juvenile proceedings. See LSA-R.S. 13:1561 et seq., especially LSA-R.S. 13:1577, quoted in the majority opinion. A reading of the cases interpreting R.S. 13:1577, especially In Re Garland, 160 So.2d 340 (La.App., 4th Cir. 1964), In Re White, 160 So.2d 344 (La.App., 4th Cir. 1964) and In Re State In Interest of Wesley, 285 So.2d 308 (La.App., 4th Cir. 1973), indicate there is a strong presumption against the voluntariness of a confession given by a juvenile while out of the presence of his parents or counsel. This presumption is additionally supported by the paternalistic concept of juvenile proceedings. Although State v. Melanson, 259 So.2d 609 (La.App., 4th Cir. 1972) holds to the contrary, this decision has been strongly criticized by the same court in State, In Interest of Holifield, 319 So.2d 471 (La.App., 4th Cir. 1975). Also see Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962).

The situation presented in this case is exactly the type of situation at which the statute and the jurisprudence are aimed. After the police take a juvenile into custody late one evening, some 30 days after his initial arrest, interrogate him out of his parents’ presence, and hold him incommunicado for 64 hours in the city jail, how can it be said a written “confession” given to a juvenile officer immediately prior to the juvenile’s release is voluntary? This written confession should have been suppressed.

The majority recognizes the verbal confession given to the officers after they deliberately removed the boy’s mother from the interrogation room is involuntary. Its admission into evidence alone demands reversal of the adjudication of delinquency.

In State In Interest of Simon, 295 So.2d 473 (La.App., 3d Cir. 1974), the court stated:

“We believe it to be reversible error for a juvenile court to receive . . . [inadmissible] hearsay evidence, opinions, and recommendations prior to making an adjudication. In re State In the Interest of Elliott, 206 So.2d 802 (La.App., 2d Cir. 1968); Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).”

See also State In Interest of Simmons, 299 So.2d 906 (La.App., 3d Cir. 1974); State In Interest of Prestridge, 323 So.2d 868 (La.App., 2d Cir. 1975).

If introduction of inadmissible hearsay mandates reversal, surely the introduction of a constitutionally infirm oral confession can do no less.

Finally, those articles of the Louisiana Code of Criminal Procedure upon which the majority rely, especially C.Cr.P. art. 921, lend no support to their decision, since the provisions of the Code of Criminal Procedure are inapplicable to juvenile proceedings. State In Interest of Braswell, 294 So.2d 896 (La.App., 2d Cir. 1974); In Re State In Interest of Tyler, 262 So.2d 815 (La.App., 4th Cir. 1972); In Re State In Interest of Williams, 267 So.2d 918 (La.App., 4th Cir. 1972).

I think the judgment of the trial court should be reversed.

      . R.S. 13:1577
      A. Whenever a child is taken into custody, unless it is impracticable or inadvisable or has been otherwise ordered by the court, he shall be released to the care of a parent, tutor or other custodian, upon the promise of such parent, tutor or custodian to bring the child to the court at the time fixed. The court may require a bond from such person for the appearance of the child; and upon the failure of such person to produce the child when directed to do so, the court may, in addition to declaring the bond forfeited, punish that person as in case of contempt. If not so released such child shall be taken immediately to the court or to the place of detention designated by the court or probation officer. Any police officer, sheriff, probation officer, or other peace officer violating any of the terms of this section may be judged guilty of contributing to the act or condition which would bring a child within the provision of this chapter. Pending further disposition of the case, the child may be released to the care of a parent, tutor, agency or other person appointed by the court, or be detained in such place as shall be designated by the court or probation officer subject to further order.

      . B. Nothing in this chapter shall be construed as forbidding any peace officer from immediately taking into custody any child who is found violating any law or ordinance, or whose surroundings are such as to endanger his welfare. In every case the officer taking into custody any child for detention shall immediately and in any event within twenty-four hours, report the fact to the court or probation officer and the case shall then be proceeded with as provided by law.
      C. Except as hereinafter provided, no child shall be confined in any police station, prison or jail, or be transported or detained in association with criminal, vicious or dissolute persons. A child fifteen years of age or older may be placed in a jail or other place of detention for adults, but in a room or ward entirely separate from adults.

      . Cases such as State v. Whatley, 320 So.2d 123 (La.1975) and State v. Ghoram, 328 So.2d 91 (La.1976) are easily distinguishable since, although they involve juveniles, they are not juvenile proceedings but are criminal proceedings and not within the purview of LSA-R.S. 13:1571.


author: JONES, Judge.

text:
    Bobby BRADFORD et al., Plaintiffs-Appellants, v. Lee R. THOMAS, Jr., et al., Defendants-Appellees.
    No. 13177.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.
    Writ Refused June 10, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants.
    Teekell & Chaudoir by Richard E. Chau-doir, Provosty & Sadler by David P. Spence, Alexandria, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiffs, the children of Elmer Bradford, Sr., appeal from a trial court judgment rejecting their claim of ownership to the West One-Half (W V2) of the Northwest One-Fourth (NW Vi) of Section 35, Township 14 North, Range 5 West, Bienville Parish, Louisiana, based on acquisitive prescription of 30 years or, alternatively, based on acquisitive prescription of ten years. Defendants are the record owners of the disputed acreage. We affirm.

Plaintiffs established their parents, Elmer Bradford, Sr. and Beulah Bradford, resided on a portion of the disputed acreage from 1933 until the family left for California in 1952. Plaintiffs offered testimony that their parents constructed a dwelling and out-buildings on the land, and had once fenced the entirety of the disputed land. Plaintiffs also offered testimony that their relatives occupied a dwelling on the disputed acreage after plaintiffs’ departure in 1952. However, plaintiffs fail to establish the period of time these relatives were in possession of the land, or that these relatives were possessing for plaintiffs, or at plaintiffs’ sufferance. Neither these relatives, nor their heirs, are parties to this lawsuit, nor did any of them testify at trial.

There is no evidence that any of plaintiffs have lived on the land in dispute since they left in 1952. The only “act of possession” plaintiffs can claim after 1952 is the purchase of the disputed land by their father, Elmer Bradford, Sr., from their grandfather, Cornelius Bradford, and recor-dation of the deed in 1956. There is no evidence that Cornelius Bradford possessed any ownership rights to the land. Neither plaintiffs nor their father have ever paid any taxes on the land in dispute.

Defendants established the land at issue was adjudicated to the State of Louisiana in 1921 for nonpayment of taxes in 1920, and was redeemed by their ancestor in title, Lee R. Thomas, Sr., in 1938. The taxes on the property have been paid by them since that time. Defendants introduced testimony by a forester employed by them to manage their land. He stated only some 15-18 acres of the disputed tract was fenced when he visited the land in 1950 and there was no evidence of any other fencing. He also testified to extensive timber cutting operations on the land in 1962, some 29 years after plaintiffs’ parents’ initial possession of the land, and only 24 years after title to the property was redeemed from the State. The forester declared all merchantable timber was cut from the land in 1962, even that within several feet of the dwelling, and there was no opposition to the cutting of timber by anyone. He stated only the dwelling was occupied in 1962. The evidence established this occupant was possibly Devoter Martin, second wife and widow of Cornelius Bradford.

The trial judge found the testimony of defendants’ forester was much more reliable than that of plaintiffs’ witnesses, and relied on it extensively. He held plaintiffs had not met their burden of proving their title by acquisitive prescription. We agree.

A person pleading prescription of 30 years bears the burden of proving unequivocal, continuous, uninterrupted, public and adverse possession by a preponderance of the evidence. Rhoads v. Lang, 303 So.2d 257 (La.App., 2d Cir. 1974); Woodell v. Roberts, 329 So.2d 858 (La.App., 2d Cir. 1976), and every presumption is in favor of the holder of the legal title. Babin v. Montegut Insurance Agency, Inc., 271 S'o.2d 642 (La.App., 1st Cir. 1972). Plaintiffs have established their possession of a portion of the disputed land beginning in 1933. However, they could not begin to acquisitively prescribe against the record owner of the land until 1938 when the land was redeemed, since title was in the State of Louisiana prior to 1938 due to the 1921 tax adjudication. Ward v. South Coast Corporation, 198 La. 433, 3 So.2d 689 (1941); White v. Thomas, 85 So.2d 385 (La.App., 2d Cir. 1956).

After plaintiffs moved in 1952, their only act with regard to the land was the recordation of the sale between Cornelius Bradford and Elmer Bradford, Sr. in 1956. Once plaintiffs established physical possession of the land they are presumed to have continued in “civil possession” of the land within their enclosures. LSA-C.C. Arts. 3442-44, 3502; Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952). However, this presumption of “civil possession” is lost by failure to exercise actual possession for ten years. LSA-C.C. Art. 3444, Frost Lumber Industries v. Bluford, 13 La.App. 686, 128 So. 711 (2d Cir. 1930); Albert Hanson Lumber Company v. Riggs Cypress Company, 130 La. 772, 58 So. 567 (1911).

Defendants showed the physical inspection of the disputed land, even though minimal, by their forester in 1950 and that they had paid all taxes oh the land since 1938. Defendants presented undisputed testimony which establishes the 80 acre tract was subject to the extensive timber operations in 1962 and all merchantable timber was removed from the land, including that adjacent to the dwelling along with any that existed within plaintiffs’ old enclosures. Considering this was principally timber land, this action by defendants in exercise of their possession over the disputed land within the limits of their title, when coupled with plaintiffs’ ten year absence from the land, dispossessed plaintiffs from any vestiges of possession they had retained after their departure in 1952. LSA-C.C. Art. 3449. See Succession of Kemp v. Robertson, 316 So.2d 919 (La.App., 1st Cir. 1975), A. M. Edwards Company v. Dunnington, 58 So.2d 225 (La.App., 1st Cir. 1952).

Plaintiffs also claim to have acquired the land at issue by prescription of ten years. C.C. Arts. 3478, 3479. Plaintiffs’ title is by inheritance from their father, Elmer Bradford, Sr., who acquired his title by written act from his father, Cornelius Bradford, in 1956. Plaintiffs have not shown they possessed the land for ten years subsequent to the acquisition of title in 1956. As noted above, there is no evidence of corporeal possession by plaintiffs after 1952. In fact, there is the undisputed evidence of extensive timber cutting operations on the land at the direction of defendants in 1962, only six years after Elmer Bradford’s acquisition of the land by title from his father.

For the foregoing reasons, the judgment of the trial court is affirmed, appellants to pay all costs of this appeal.


author: BOLIN, Judge.

text:
    Jack R. COURSHON, as Nominee of the Trustees of First Mortgage Investors, Plaintiff-Appellee, v. TIL, d/b/a Spanish Villa Apartments of Monroe, et al., Defendants-Appellants.
    No. 13184.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.
    Writ Refused June 15, 1977.

      McKinley, Bruscato & Loomis by Anthony J. Bruscato, Monroe, for defendant-appellant, Jesse H. Heard Construction, Inc.
    Sholars, Gunby, Allbritton & Hayden by B. D. Allbritton, Monroe, for defendant-appellant, Monroe Concrete Co.
    Coon & Coon by J. Norman Coon, Jr., Monroe, for defendant-appellant, John' G. Moses.
    Heard & Jefferson by Jesse S. Heard, Jr., Monroe, for defendant-appellant, John G. Moses and Stuart C. Irby Co.
    Johnson & Johnson by Hewitt B. Johnson, Monroe, for defendant-appellant, Twin City Glass, Inc., Billy Mack Caldwell, Herbert J. Banks, Jr. and Frank Miletello.
    Shotwell, Brown & Sperry by L. Michael Ashbrook, Monroe, for defendant-appellant, Dumas Electrical Heating & Air Conditioning and William Arthur Warner d/b/a Warner Air Conditioning & Heating Co.
    Oliver & Wilson by John W. Wilson, Monroe, for defendant-appellant, Hogan-Scar-boro Corp.
    Marshall 0. Blackwell, Monroe, for defendants-appellants, B & R Erection, Lane-Wilson Co., Inc., and O. E. Wood & Son.
    Guerriero & Placke by Joe D. Guerriero and Allan L. Placke, Monroe, for defendant-appellant, J. E. Dupuy Flooring & Accoustical, Inc.
    Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for defendant-appellant, Joseph E. Ray d/b/a Ornate Metals.
    Snellings, Breard, Sartor, Shafto & Inab-nett by W. S. Shafto, Jr., Theus, Grisham, Davis & Leigh by Robert Lee Curry III, Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

This suit involves a question of ranking between a mortgagee on one hand and various contractors and materialmen holding privileges against the mortgaged property on the other hand. TIL executed a mortgage to First Mortgage Investors (FMI) for $1,100,000 as security for money advanced and to be advanced by FMI to TIL for the construction by TIL of an apartment complex. Subsequently FMI foreclosed on the mortgage and the property was sold at a sheriff’s sale for $600,000. The mortgagee (FMI) and the various lien holders each claim entitlement to satisfaction out of the proceeds. The trial court ruled in favor of the mortgagee and we affirm.

The primary issue is whether a mortgage to secure simultaneous or future advances, which is recorded prior to the recordation of a written construction contract, primes privileges granted to contractors, subcontractors or furnishers of material involved in the construction.

The construction mortgage on the property was recorded on June 8, 1973. The note was delivered to FMI and some disbursements of funds were also made on that date. The construction contract was signed on June 8 but was not recorded until June 12. The contract provides, “No work shall commence until after the recordation of this contract.”

There is voluminous and contradictory testimony concerning when work was begun and material delivered to the site of this construction. The timeliness of the filing of the various liens is not in dispute.

Pertinent to the question on appeal are several sections of Title 9, Louisiana Revised Statutes. Subsection A of § 4801 grants a privilege against immovable property and any improvements thereon to contractors, subcontractors, laborers, and mate-rialmen involved in construction on that property. Subsections B and C each purport to rank the privileges but list different criteria for that purpose.

Subsection B provides that the privileges enumerated in Subsection A are superior to all other claims against the land and improvements “except: . . . mortgages if the . . . mortgages exist and have been recorded before the work or labor has begun or any material has been furnished.”

Subsection C provides that where mortgages are executed to secure simultaneous or future advances, these advances are secured in preference to any other claims if the mortgage has been recorded “before any work or labor has begun or material has been furnished, or before the recordation of a building contract, . . (Emphasis ours)

Citingthe above italicized language as well as R.S. 1:9 which provides that the term “or” as used in the revised statutes is used in the disjunctive unless otherwise specified, the trial judge held that a mortgage was superior to the privileges created by 9:4801(A) if it was recorded either before materials were supplied or work begun or before the building contract was recorded. Since the mortgage was recorded on June 8, and the building contract not until June 12, the trial judge found the mortgage to be superior regardless of when materials were delivered or work begun. We find a reasonable interpretation of 4801, C, supports the result reached by the trial judge.

Appellants contend the trial court’s interpretation of subsection C distorts the general purpose of the Private Works Act. They envision a situation whereby a mortgagee who failed to record his mortgage until several weeks after material had been delivered or work had begun so that the mortgage was inferior to the privileges, could elevate his mortgage to a superior rank by subsequently causing the building contract to be recorded. This situation could not arise since Section 4802 provides that a building contract “shall be recorded before the date fixed on which the work is to commence and not more than thirty days after the date of said contract.”

We find that the language of Subsection C providing that a mortgage is superior to other claims against the property if it is recorded prior to the recordation of the building contract refers only to a timely recorded building contract as defined by 9:4802.

Ifabuilding contract is not recorded timely, then the controlling provision as to ranking is not Section 4801, C, but rather Section 4812. That section creates a privilege against property in those instances in which there is no building contract “or when a contract has been entered into but has not been recorded, as and when required . . . (Emphasis ours) The phrase “as and when required” must be read to refer to requirements set forth in Section 4802. If the building contract is not recorded timely, Section 4812 states that with certain exceptions the privileges are superior to any claims against the property except when the mortgage exists and is recorded before work has begun or materials furnished.

The building contract in this case provides, “. . .No work shall commence until after the recordation of this contract.” The contract was signed on June 8 and recorded on June 12. Therefore this contract was timely recorded as measured by the specifications of Section 4802, and Section 4812 is not applicable.

This mortgage to secure future advances with a timely recorded building contract is specifically governed by 9:4801 C, and under this Subsection a mortgage recorded prior to recordation of the building contract is superior to all other privileges against the property except laborer’s privilege, regardless of when materials were supplied or work begun.

The judgment is affirmed at appellants’ cost,

HALL, J., concurs in the result.

      . § 4801.
      A. Every contractor, subcontractor, architect, engineer, registered land surveyor, master-mechanic, mechanic, cartman, truckman, workman, laborer, or furnisher of material, machinery, or fixtures, exclusive of anyone who rents or leases movable property whose rights shall be governed by the provisions of R.S. 9:4801.1, who performs work or furnishes material for the erection, construction, repair, or improvement of immovable property, or who furnishes material or supplies for use in machines used in or in connection with the erection, construction, repair, or improvement of any building, structure, or other immovable property, with the consent or at the request of the owner thereof, or his authorized agent or representative or of any person with whom the owner has contracted for such work, has a privilege for the payment in principal and interest of such work or labor performed, or the materials, machinery or fixtures furnished, and for the cost of recording such privilege, upon the land and improvements on which the work or labor has been done, or the materials, machinery, or fixtures furnished.
      B. Except as stated in Sub-Section D of this Section, the privilege given by Sub-Section A of this Section, if evidenced as provided in the applicable provisions of this Sub-Part, is superior to all other claims against the land and improvements except: (1) taxes and local assessments for public improvements if any, and (2) bona fide vendor’s privileges or mortgages if the vendor’s privileges or mortgages exist and have been recorded before the work or labor has begun or any material has been furnished. For the purposes of this Sub-Section, a vendor’s privilege or a mortgage resulting from a sale and resale to and from a regularly organized homestead or building and loan association also constitutes a vendor’s privilege or mortgage, respectively, within the intendment of this Sub-Section.
      C. When a mortgage note has been executed by the owner of the immovable for the purpose of securing advances to be made either simultaneously therewith or in the future, whether such advances be for the payment of all or part of the purchase price of the property, for commitment fees or any other type of expenses incurred or to be incurred in connection with construction on the property, and the mortgage has been recorded and the note delivered to the lender before any work or labor has begun or material has been furnished, or before the recordation of a building contract, the amount of the advances made simultaneously therewith or thereafter shall be deemed secured by the mortgage in precedence to and with priority over any of the claims had under the privileges conferred by Sub-Section (A) of this section, except as stated in Sub-Section (D) hereof.
      D. The privilege given to the laborer by Sub-Section A of this Section primes the rights of mortgagees and vendors.
      § 4802.
      Every contract hereafter entered into for the repair, reconstruction, erection, construction, or improvement of any work on immovable property by any undertaker, general contractor, master mechanic, or engineer, or other person undertaking such general contract with the owner or his authorized agent or representatives, shall be reduced to writing, signed by the parties thereto by an authentic act, or under private signature, and shall be recorded in the office of the clerk of court or the recorder of mortgages of the parish wherein said work is to be executed, before the date fixed on which the work is to commence and not more than thirty days after the date of the said contract.


text:
    George B. COWAN and Frieda S. Cowan v. GULF CITY FISHERIES, INC.
    No. 49177.
    Supreme Court of Mississippi.
    March 2, 1977.
    Rehearing Denied April 27, 1977.
    Karl Wiesenburg, Robert H. Oswald, Pas-cagoula, for appellant.
    Frank J. Hammond, Jr., Moss Point, C. W. Ford, Pascagoula, for appellee.
    Before GILLESPIE, C. J., SMITH and WALKER, JJ., and MORGAN, Commissioner.
   CLARENCE E. MORGAN, Commissioner for the Court:

Gulf City Fisheries, Inc., appellee, petitioned the Circuit Court of Jackson County for a writ of mandamus requiring the City Clerk of the City of Pascagoula to change a zoning map. George B. and Frieda S. Cow-an, appellants, sought to intervene in the proceedings and their motion to do so was overruled. The circuit court entered judgment directing the writ of mandamus to issue requiring the City Clerk to change the zoning classification of appellee’s property from residential to industrial on the official zoning map of the City of Pascagoula. The properties of appellants and appellee are adjacent.

On July 28, 1975, appellants gave notice of their intention to prosecute the appeal as authorized by Section 11-51-107 of the Mississippi Code of 1972. The appellants have appealed to this Court as taxpayers under the provisions of Section 11-51-105 of the Mississippi Code of 1972, citing the following assignments of error:

1. The circuit court erred in granting the writ of mandamus, the appellee having adequate remedies at law, the city clerk having correctly performed her duties, and mandamus not being available to adjudicate the zoning classification of appellee’s property or to compel its rezoning.
2. The circuit court erred in granting the writ of mandamus, the circuit court’s appellate judgment of December 11, 1972 being res judicata as to the zoning of appellee’s property.
3. The circuit court erred in denying the appellants leave to defend the mandamus action in violation of their statutory and constitutional right to be heard on the rezoning of appellee’s property.

We first address ourselves to the right of appellants to intervene in this cause. Section 11-51-105 of the Mississippi Code of 1972 provides that in all suits brought against any officer of a municipality in their official capacity, any taxpayer or taxpayers of the municipality shall have the right to defend all such suits and may prosecute an appeal to the circuit court of this state, if the officer subject to the suit does not prosecute an appeal within thirty (30) days from the date the same is rendered. We have heretofore held in Garraway v. State, 184 Miss. 466, 184 So. 628 (1938) and related cases, that this statute is not limited to tax related suits and that it is applicable to any suit brought against county or municipal officials. The appellants had the right to intervene in this action in the lower court and the right to appeal to this Court from an adverse ruling in the lower court under the provisions of this section of the Code, and this case is properly before this Court.

We next consider the first assignment of error which is that the circuit court erred in granting the writ of mandamus. The writ of mandamus is an extraordinary writ, available only where there is not a plain, adequate and speedy legal or administrative remedy. In a mayor and city council form of municipal government in this state, the clerk is the creature of the council, serving at their will, under their direction. This Court held in Delta Construction Company of Jackson v. City of Pascagoula, 278 So.2d 436 (Miss.1973) that the mayor and city council have the final say within the municipal structure as to zoning matters. There is nothing in this record to indicate that appellee ever petitioned the mayor and city council of Pasca-goula for the relief which they sought of the city clerk. Appellee did not exhaust its administrative remedy from which a regular course of appeal is allowed by law. Ap-pellee should first have petitioned the city council for relief and if denied relief there, it should have utilized the statutory method of perfecting appeals from a decision of a municipal body. The Court is of the opinion that the issuance of the writ of mandamus to the City Clerk of Pascagoula was reversible error.

This Court, being of the opinion that the writ of mandamus should not have been issued in this case, finds that it is not necessary to consider the other assignments of error.

The judgment of the circuit court is reversed and the writ of mandamus is vacated.

REVERSED AND RENDERED.

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

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


author: WALKER, Justice, for the Court: LEE, Justice,

text:
    CITIZENS NATIONAL BANK v. Mrs. Evelyn WALTMAN. 2 opinions attached
    No. 49001.
    Supreme Court of Mississippi.
    March 9, 1977.
    Rehearing Denied April 27, 1977.

      Cox & Dunn, William H. Cox, Jr., Varda-man S. Dunn, Jackson, for appellant.
    Heber A. Ladner, Jr., Pittman & Nobles, Crymes G. Pittman, Jackson, for appellee.
   WALKER, Justice, for the Court:

Mrs. Evelyn Waltman instituted this action in the Circuit Court of the First Judicial District of Hinds County, Mississippi, seeking to recover damages arising as a result of alleged fraud and negligence in connection with a series of loan transactions involving her, her late husband, Billy J. Mann, and the defendant, Citizens National Bank. The jury returned a verdict for Mrs. Waltman in the amount of $102,000, but the trial judge ordered a remittitur, accepted by the plaintiff, in the amount of $32,000. The Bank’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial having been overruled, it brings its appeal to this Court.

Mrs. Waltman, a widow and a business woman, married Billy J. Mann on January 31, 1971. On March 1, 1971, she and her husband executed a note in the amount of $22,445.40 to the Citizens National Bank, pledging as collateral a 40 acre farm in Copiah County owned by Mrs. Waltman and several shares of stock, which later proved to be worthless, owned by her husband. The only real factual dispute in this case involves the circumstances of that transaction. Mrs. Waltman testified that her husband had called her late on the afternoon of March 1 to inform her that he had negotiated a business loan but that her collateral was needed before the Bank could close the deal. She resisted this suggestion, but the loan officer, Bobby Pace, assured her that all was'in order. When she arrived at the Bank, both the note and the deed of trust had already been prepared, the description of her property having already been typed into the deed of trust. She did not wish to mortgage her property, but Pace assured her that her farm would serve only as interim security for a few days until her husband’s stock arrived from Shreveport. Relying on this assurance, she signed the note and the deed of trust. Pace, of course, substantially contradicted this testimony, but, because of our disposition of the case, it is not necessary to review his testimony in any detail. It seems to be undisputed that the proceeds of the loan were used to satisfy Mr. Mann’s indebtedness to a Shreveport Bank, as well as two earlier loans by Citizens National to Mr. Mann and an $800 loan to Mrs. Waltman. Mrs. Walt-man claimed that the Bank never informed her of the existence of these prior loans to Mann, which her collateral was used to secure. However, these prior loans do appear on the loan disbursement sheet executed in conjunction with the disclosure statement signed by Mrs. Waltman. After satisfying these debts, Mr. Mann and Mrs. Waltman received only $10,000 in cash for their $22,000 note.

Apart from this initial conflict in testimony, the facts in the case seem hardly to be in dispute. Mr. Mann incurred further debts with the Bank, including a note executed on September 22,1971, in the amount of $2,682. By the time of that loan, the March 1 loan had become delinquent, and Mr. Mann and Mrs. Waltman had separated because of his financial irresponsibilities. By August 23 the Bank had discovered that the stock pledged by Mr. Mann had no value whatsoever. Mr. William White, the vice-president of the Bank, called Mrs. Waltman and told her that she would have to bring the loan up-to-date. The Bank required her to put up her 89 shares of General Motors Stock as collateral for the original debt on September 10, 1971. On June 15, 1972, the Bank sold 20 shares of that stock to bring the loan current. The note again became delinquent, and Mrs. Waltman executed another note on November 24, 1972, in the amount of $17,552.62. The renewal was supported by the same collateral and was executed in her name alone, retiring the original note. Whereas the original note had been payable in 60 monthly installments, this note was to be payable in full within six months. Furthermore, as a condition of this renewal, Mrs. Waltman was required to accept responsibility for the September 22, 1971, loan to Mr. Mann, a loan that the Bank had made with full knowledge that Mr. Mann’s earlier loan had become delinquent. This note also became delinquent, and Mrs. Waltman executed a final note, in the amount of $17,-552.62, on August 8, 1973, payable on September 7, 1973. At the time of this last renewal, Mrs. Waltman had been divorced from Mr. Mann since July 18, 1973. When this final note became delinquent, the Bank foreclosed the mortgage on Mrs. Waltman’s farm on December 26, 1973, sold the remaining General Motors stock and retired the indebtedness.

In her amended declaration, Mrs. Walt-man sought recovery for, inter alia, the tort of fraud and deceit, arising from the Bank’s alleged misrepresentation that her farm was only to be used for a few days as interim security for the original loan.

Under her second count, she alleged that the Bank tortiously coerced her into assuming responsibility for an independent debt of Mr. Mann as a condition for renewing the original debt.

We need not decide whether the jury was properly instructed, nor whether it could properly accept the version of the facts offered by Mrs. Waltman. Nor need we decide whether, accepting Mrs. Walt-man’s version of the facts as true, the Bank committed any actionable wrong, either fraudulently or negligently. We have reached the inescapable conclusion that by executing the last renewal note on August 8, 1973, with full knowledge of the surrounding circumstances, Mrs. Waltman waived any cause of action she might have had against the Bank based on the earlier notes. Therefore, the defendant’s peremptory instructions should have been granted. Although the Bank in its answer did not use the term waiver, the defense of waiver is amply pled in its answer to Count II, Paragraph 10.

At the time of the last renewal, Mrs. Waltman was well aware of the facts constituting the alleged fraud. She knew that the Bank’s alleged assurance that her land was needed only as interim security had been proven false. She knew that Mr. Mann’s stock, which the Bank allegedly had assured her was valuable, had proven worthless. She knew or was charged with the knowledge that the Bank had used the original loan to pay off earlier debts of Mr. Mann. She knew that the Bank had required her to assume his later debts in the renewal of November 24, 1972.

Our law is clear that the execution of a renewal note with full knowledge of the facts constituting a defense to the original note waives that defense as to the renewal. Justice Griffith explained this doctrine in Gay v. First Nat’l Bank, 172 Miss. 681, 686, 160 So. 904, 905 (1935);

Where a party has full knowledge of all defenses to a note and executes a new note payable at a future date, he then waives all his defenses and becomes obligated to pay the new note. Tallahatchie Home Bank v. Aldridge, 169 Miss. 597, 604, 153 So. 818. And where the facts and circumstances are such that a reasonably prudent person, judged by normal standards, would or should have made inquiry, which inquiry, if reasonably pursued and with ordinary diligence, would have led to full knowledge of his defenses, then it becomes the duty of the party or parties to make such inquiry or investigation before executing the renewal note, and if he fail to do so he is as much bound as if he had actual knowledge of all the facts.

Mrs. Waltman, in her brief, neither distinguishes Gay nor suggests that it should be overruled. We find it controlling here.

On the evidence here presented, no judge or jury could reach any conclusion other than that Mrs. Waltman had full knowledge of all the facts at the time she executed the final renewal on August 8, 1973. That being the case, it follows as a matter of law that she waived any right of action she might have had against the Bank. Therefore, the judgment of the circuit court must be reversed, and judgment rendered here for the appellant.

REVERSED AND RENDERED.

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

LEE, J., dissents.

LEE, Justice,

dissenting:

I.

I distinguish Gay v. First National Bank, 172 Miss. 681, 160 So. 904 (1935) from the case under consideration.

On August 7, 1929, Gay endorsed a six-hundred-dollar ($600.00) note, the money obtained therefrom to be used in the purchase of a tract of timber. He claimed there was an agreement with the bank and the maker of the note, as a consideration of endorsement, that the lumber coming from the sale of the timber would be invoiced through the bank and that forty percent (40%) of the net proceeds would be deducted and credited to a stumpage account for payment of the note. The bank contended the understanding was that funds in the stumpage account should be credited to any debt of maker to the bank. The stumpage account was closed in March, 1930, at which time sufficient funds had been collected to retire the note. There were numerous renewals of notes for the balance until March 25, 1933, when the last renewal was executed and suit was filed. Thus, for a period of three years, Gay knew that sufficient funds had been credited to the stumpage account for the payment of his note and did nothing about it.

In the present case, appellee executed a note and mortgage to appellant, Citizens National Bank, upon representation of the bank, that they were a temporary and interim transaction until the bank received collateral from her husband’s bank in Shreveport. Appellee executed the renewals in order to extricate herself from the situation brought about by the bank, without gain to herself, and to her detriment in the loss of her land and stock.

Regardless of the distinguishing features, the rule in Gay is too antiquated and harsh, and should be modified or enlarged to harmonize with the better, more reasonable position of other states. I think that before it can be said appellee waived her cause of action (right) against the bank, she must (1) have full knowledge of the fact that she had a cause of action, and (2) she intended to waive or relinquish that right.

“The question of outright waiver is one of intent, and it is essential to such waiver that the victim possess full knowledge of the fraud practiced upon him and that he intend to affirm the contract and abandon his right to recover damages for the loss resulting from the fraud.” 37 Am.Jur.2d Fraud and Deceit § 386, at 523 (1968).

In Bowman v. Webster, 44 Wash.2d 667, 269 P.2d 960 (1954), the Court said:

“The one against whom the waiver is claimed must have actual or constructive knowledge of the existence of the right. He must intend to relinquish such right, advantage, or benefits; and his action must be inconsistent with any intention other than to waive them.” 44 Wash.2d at 669, 269 P.2d at 961.

The better rulé is that, unless the renewal gives the defrauded party something in addition to what he had before, such party has not waived his existing cause of action.

The Court, applying Iowa law, in United Forest Products Company v. Baxter, 452 F.2d 11 (8th Cir. 1971), approved the rule stated in an instruction of the trial court as follows:

“In order for there to have been a waiver, it must be established that there was a material change in the agreement to the benefit of the plaintiff, and that the plaintiff at the time of such change had full knowledge of the facts constituting the fraud and of the damages resulting therefrom.” 452 F.2d at 14, n. 1.

That Court cited cases from Iowa and California to the effect that a mere extension of time or change in the terms of payment does not constitute such a benefit as would waive the fraud. Other states have taken a similar position that the defrauded party must receive some benefit from the new agreement before the fraud is held to be waived. See Smith v. Tracy, 372 S.W.2d 925, 937 (Mo.1963); Dorr v. Janssen, 233 Or. 505, 510, 378 P.2d 999, 1001 (1963).

I am of the opinion that before it can be held that appellee waived any right of action she had against the bank, (1) the question of whether, she had full knowledge of the facts (a cause of action against the bank) should have been submitted to the jury, and (2) whether she intended to waive and relinquish the cause of action should have been submitted to the jury. Those were issues on the question of waiver, under the facts of this ease, which were for determination by a jury and not by a court.

II.

The defense of waiver was not presented to the trial court. The answer did not plead waiver [See Appendix], there was no affirmative defense of waiver filed, and there was no instruction obtained presenting that question to the jury. Mississippi Code Annotated § 11-7-59(4) (1972) requires such a defense to be pleaded:

“(4) If the defendant desire to prove by way of defense in an action, any affirmative matter in avoidance, which by law may have been proved heretofore under special plea he shall set forth in his answer to the action such affirmative matter and incorporate such defense therein, otherwise such matter shall not be allowed to be proved at the trial; . . .”

A defense not raised in the trial court may not -be raised for the first time on appeal. Vinson v. Cooley, 54 So.2d 750, 751-52 (Miss.1951). A defense not called to the attention of the trial court will not be considered by this Court on appeal. Jones v. Taylor, 156 Miss. 790, 126 So. 821 (1930).

I am of the opinion that this Court should not have considered the defense of waiver, upon which the ease was decided, but, even so, that there was no waiver, and that the case should be affirmed on this question.

APPENDIX

COUNT II.

10.

The allegations of paragraph 10 are denied, but Defendant would show that in June, 1973 at a time when Plaintiff was in default on an earlier indebtedness, at the request of Plaintiff, in order to have time to get the money to pay her debts, Defendant agreed to incorporate all of the debts of Mr. and Mrs. Mann to a single indebtedness. Defendant denies that Plaintiff was forced or required to assume any indebtedness of Billy Mann, but to the contrary, would show that Plaintiff voluntarily undertook the obligation as an inducement to this Defendant reworking the overall indebtedness of Mr. and Mrs. Mann.


text:
    Robert L. COTTON v. VETERANS CAB COMPANY, INC.
    No. 49110.
    Supreme Court of Mississippi.
    March 23, 1977.
    Rehearing Denied April 27, 1977.
    Scales & Scales, Fred T. Rucker, III, Jackson, for appellant.
    Tighe & Tighe, B. Stirling Tighe, Jackson, for appellee.
    Before GILLESPIE, C. J., SMITH and WALKER, JJ., and MORGAN, Commissioner.
   CLARENCE E. MORGAN, Commissioner for the Court:

Robert L. Cotton sued Veterans Cab Company and its driver Frank L. Taylor for personal injuries sustained in an automobile accident. At the conclusion of the case the court entered judgment for Veterans Cab Company, Inc., and provided in the judgment that a mistrial was declared as to the part of the case between Cotton and Taylor. Cotton gave notice of appeal and filed an appeal bond designating Veterans Cab Company, Inc. as the appellee. The bond also recited that the judgment in favor of Veterans Cab Company was a final judgment and recited “that the same judgment declared a mistrial of said cause as between plaintiff and defendant Frank L. Taylor.”

Appeals to the Supreme Court from the circuit court lie only from a final judgment. Mississippi Code Annotated § 11-51-3 (1972) provides in part as follows: “An appeal may be taken to the supreme court from any final judgment of a circuit court in a civil case . . . This Court has repeatedly held that there is no interlocutory appeal from a judgment of a circuit court except where the sole ground of an order for a new trial is the excessiveness or inadequacy of damages. See Miss. Code Ann. § 11-7-213 (1972). Bradley v. Holmes, 242 Miss. 247, 134 So.2d 494 (1961) was a case precisely in the same status as the one now before the Court. We held that an appeal is not a matter of right but must fall within statutory provisions and that the basic requirement is that the appeal must be from a final judgment; and a judgment is not final which settles the cause as to a part only of the defendants. In sum, the judgment is final only when it settles all issues as to all parties.

The statutory scheme is designed to prevent the splitting of appeals. The Court of its own motion takes note of its lack of jurisdiction. Farrar v. Phares, 232 Miss. 391, 99 So.2d 594 (1958). The appeal is dismissed.

APPEAL DISMISSED.

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

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


author: GILLESPIE, Chief Justice,

text:
    Christopher Alvin MOORE v. STATE of Mississippi.
    No. 49561.
    Supreme Court of Mississippi.
    March 23, 1977.
    Rehearing Denied April 27, 1977.

      Kennie E. Middleton, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Special Asst. Atty. Gen. and Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   GILLESPIE, Chief Justice,

for the Court.

Charged with capital murder, Christopher Alvin Moore was convicted and sentenced to suffer the death penalty. He was indicted in Jackson County and the trial was moved to Hancock County upon defendant’s motion for a change of venue.

Mrs. Irene Hoffman was murdered in her home in Pascagoula, Mississippi. She was employed as a teacher at the Arlington Elementary School which is located across the street from her residence. On the day she was murdered, Mrs. Hoffman had a break in her teaching schedule between the hours of 9:45 and 10:45 A.M. During this break she went home as was her custom. She was murdered sometime between the hours of 10 and 11 A.M., while she was at home during the school recess. Her body was found at approximately 11:10 A.M. by two of her fellow teachers who came to her residence to inquire about her failure to resume her teaching duties at 10:45 A.M. After failing to get a response by knocking on the door, the two teachers entered the home by climbing through a window. They found Mrs. Hoffman’s body lying on the floor with her hands bound behind her and a gag in her mouth. The victim’s clothes, floor and walls were spattered with blood in more than one room and an overturned stool in another room gave indication that the victim and her attacker had struggled over a considerable area of the house. Mrs. Hoffman was fully dressed and had been stabbed a total of eleven times and there were lacerations on the head and scalp. The only manner in which the. attacker could have entered was through a window. The screen was open. Several latent fingerprints were lifted from the screen at this window.

I.

Was defendant entitled to peremptory instruction?

The proof linking defendant with the crime consists of: (1) at some time near the hour of the murder a black male riding a dark ten-speed bicycle was seen stopped at a point near Mrs. Hoffman’s house looking over the fence into her yard (defendant is a 22-year-old black male); (2) a latent fingerprint lifted from the frame of the window screen where the intruder entered the Hoffman residence matched identically with defendant’s fingerprint; (3) two Negroid hairs were found on Mrs. Hoffman’s pubic area that had the same characteristics as hairs from defendant’s body, and the expert testified that although he could not testify that the hairs from the two sources came from the same person, it was a rare case when he could not find different characteristics in hairs from two different people, and (4) defendant lived in the immediate neighborhood of the Hoffman residence.

In our opinion the fingerprint is conclusive evidence that defendant was at the window where the murderer entered the house. The hair evidence is very convincing that defendant’s hair was on Mrs. Hoffman’s pubic area. The other evidence is consistent with defendant’s guilt. His alibi evidence is weak and could readily be rejected by the jury. Defendant did not testify.

We are satisfied that the jury was justified in finding defendant guilty beyond a reasonable doubt and to the exclusion of every reasonable hypothesis other than that of defendant’s guilt. He was not entitled to the peremptory charge, nor was the verdict contrary to the overwhelming weight of the evidence.

II.

Was the fingerprint evidence admissible?

Appellant argues that his fingerprints were obtained as a result of his illegal detention and should have been excluded- from the evidence. He contends that the principles laid down in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), require the suppression of this evidence. After discovery of Mrs. Hoffman’s body the police launched an intensive investigation in an effort to determine the identity of the perpetrator of the crime. About twenty-six people were questioned and fingerprinted. The circumstances under which defendant was fingerprinted are as follows. The officers received information during their investigation that a black male had been seen riding a dark ten-speed bicycle in the area of the victim’s home on the morning of the murder and that this person stopped and looked over the fence surrounding Mrs. Hoffman’s house. Several days after the murder, Detective Brooks, who was investigating the murder, saw defendant riding a blue ten-speed bicycle near his home. The officer stopped and ques-tionéd the defendant about the crime and the defendant’s whereabouts on the date the crime was committed. Defendant was not detained. He told the officers that he had gone to the State Employment Office on the morning of the murder and that he did not go near the Hoffman house. Defendant lived about 100 yards from Mrs. Hoffman’s house. He occupied an apartment or a room with Jessie Mitchell, Jr. Three or four days after the date of the murder, Jessie Mitchell, Jr. was taken by the police officers to the police station and interrogated regarding the murder. The same officer who interrogated Mitchell had previously encountered appellant on his bicycle. After Mitchell was fingerprinted and as he departed from the police station, Detective Brooks requested Mitchell to contact appellant and tell him to come in as the police officers wanted to see him. Later that same day, appellant appeared at the Pascagoula Police Station where he was recognized by Detective Brooks, who took him without asking any questions to the office of the fingerprint officer of the department. Mr. Thompson, the fingerprint officer, did not question appellant and in a routine manner fingerprinted the defendant and then the defendant went on his way. About eleven days later, it was learned that one of defendant’s fingerprints matched the latent print found on the window screen where entrance was made to Mrs. Hoffman’s residence. The defendant was arrested and charged with the crime.

The totality of the circumstances clearly shows that defendant was not under arrest and voluntarily went to the police department for the purpose of being fingerprinted. This is an entirely different set of facts from those involved in Davis. Davis was a fourteen-year old youth who was first brought into the Meridian Police Department on December 3, 1965, and released after being fingerprinted and routinely questioned. Between that date and December 7, Davis was interrogated by police on several different occasions at various places and at police headquarters. On December 12, Davis was arrested and taken 90 miles away for an overnight stay in jail in Jackson at a time when the police had neither a warrant nor probable cause for his arrest, and during this time he took a lie detector test. He was returned to the Meridian jail, and on December 14, while he was still confined under arrest, he was fingerprinted a second time. The facts in the present case are not similar to those involved in Davis, and the recent case of Oregon v. Mathiason, - U.S. -, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), is authority for the proposition that the defendant in the present case was not under arrest after having voluntarily gone to the police station. In Mathiason the Court stated:

In the present case, however, there is no indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a one half-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody “or otherwise deprived of his freedom of action in any significant way.”
Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there feas been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited. - U.S. at -, 97 S.Ct. at 714, 50 L.Ed.2d at 719.

We hold that defendant’s fingerprints were voluntarily given. Cf. Luton v. State, 287 So.2d 269 (Miss.1973); and Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

III.

Assignments of error three and four raise the question of the sufficiency of the evidence to prove the crime of capital murder.

Were the elements of capital murder proven?

Defendant contends that the state failed tó prove that Mrs. Hoffman was raped and therefore failed to prove an essential ¿lenient of capital murder. The indictment charged capital murder under Mississippi Code Annotated section 97-3-19 (1976), which provides in part as follows:

(2) The killing of a human being without the authority of law by any. means or in any manner shall be capital murder in the following eases: " ’
* * * * * *
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies.

It is argued that the state failed to prove rape in that it failed to prove actual penetration of Mrs. Hoffman’s private parts. (It is not necessary to discuss whether there is merit in defendant’s contention that actual rape was not proven, because to prove the crime of burglary only the intent to rape need be proven.) This argument requires: (1) analysis of the quoted statute, (2) a statement of the elements of the crime charged in the indictment, and (3) determination whether the evidence proved these elements' beyond a reasonable doubt and to the exclusion of every reasonable hypothesis other than that of guilt.

The elements of the crime of capital murder are: (1) the killing of a human being without authority of law; and (2) when done by any person engaged in the commission of the crime of burglary, etc.

Our immediate inquiry is whether burglary was proven, inasmuch as burglary is an element of the crime charged. Burglary is denounced as a crime by Mississippi Code Annotated section 97-17-19 (1972), as follows:

Every person who shall be convicted of breaking and entering any dwelling house, in the day or night, with intent to commit a crime, shall be guilty of burglary, and be imprisoned in the penitentiary not more than ten years.

The crime of burglary of a dwelling has two elements: (1) the burglarious breaking and entering a dwelling, and (2) the felonious intent to commit some crime therein. Thames v. State, 221 Miss. 573, 73 So.2d 134 (1954).

An indictment for burglary must state the particular crime the intruder intended to commit. The indictment of defendant did so in this case, charging that he intended to commit the crime of rape. Defendant’s argument that it was necessary to prove that defendant actually raped Mrs. Hoffman is without merit. Only the intent need be proven to establish the second element of the crime of burglary. In Thames v. State, supra, this Court said:

Appellant also contends that the proof was not sufficient to prove that the appellant intended to commit rape. Intent, being a state of mind, is rarely susceptible of direct proof, but ordinarily must be inferred from the acts and conduct of the party and the facts and circumstances attending them which reasonably indicate them to the minds of others. 9 Am.Jur. 271. In the case of Nichols v. State, 207 Miss. 291, 42 So.2d 201, 202, this Court quoted approvingly from State v. Worthen, 111 Iowa 267, 82 N.W. 910, as follows: “ ‘Some presumptions are to be indulged in against one who enters a building unbidden at a late hour of night, else the burglar caught without booty might escape the penalties of the law. People are not accustomed in the nighttime to enter homes of others, when asleep, with innocent purposes.’ ”
* * * * * *
The criminal intent is clear. The specific intent to ravish is consistent with the proven facts and is reasonably inferable. Compare McFarland v. State, 212 Miss. 802, 55 So.2d 457.
221 Miss. at 577-578, 73 So.2d at 136.

The fact that the proof indicates robbery was not the intended crime, together with the finding of Negroid hairs on Mrs. Hoffman’s pubic area, the violence the burglar inflicted on Mrs. Hoffman, and the finding of sperm in her vagina allowed the inference that the intruder intended to commit the crime of rape. Where the evidence establishes that the breaking and entering was for some unlawful purpose and the specific intent is consistent with the proven facts and is reasonably inferable, the proof is sufficient to establish the second element of the crime of burglary. Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965).

IV.

We agree with defendant’s contention that the case should be reversed under the authority of Jackson v. State, 337 So.2d 1242 (Miss.1976).

The case is reversed and remanded for a new trial not inconsistent with the decision in Jackson v. State, supra.

REVERSED AND REMANDED.

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


text:
    Beverly STOCKSTILL v. James STEWART.
    No. 49277.
    Supreme Court of Mississippi.
    March 30, 1977.
    Rehearing Denied April 27, 1977.
    Stewart & Burks, Delos H. Burks, Picayune, for appellant.
    Bryan, Nelson, Allen & Schroeder, Harry R. Allen, Gulfport, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Affirmed on condition of additur in the amount of $3,000 making a total judgment of $5,000; otherwise, reversed and remanded for another trial on all issues.

PATTERSON and INZER, P. JJ., and ROBERTSON, SUGG, BROOM and LEE, JJ., concurring.