text:
    CITY OF ST. PETERSBURG, Florida and P. C. Begerow, Appellants, v. Christopher REED, a minor, by Sylvester Reed, Jr., and Audrey E. Reed, his natural parents and next of kin, et al., Appellees.
    No. 75-792.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.
    Rehearing Denied May 5, 1976.

      Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellants.
    I. W. Williams, of Williams & Milton, St. Petersburg, for appellees.
   PER CURIAM.

Plaintiff/appellee, Christopher Reed, was shot in the leg by a police officer while trying to escape arrest. He and his parents brought suit for assault and battery and recovered a judgment on a jury verdict of $50,000 from appellants/defendants, City of St. Petersburg and Officer Begerow. We reverse.

The incident occurred at the parking lot of the Bayfront Center in St. Petersburg on September 22, 1973, while a rock concert was in progress inside. Several officers on neighboring rooftops observed two teenagers try the doors of a number of vehicles in the parking lot and finally enter a van for a few moments, obviously committing an illegal entry. These individuals got into a car which cruised around the parking lot in sight of the police. In a few moments the police observed this car stop and the appellee and another person got out. The rooftop officers, believing they were the same two individuals who had just gotten into the car, directed officers on the ground to arrest them. As officers, including the defendant Officer Begerow, tried to arrest and handcuff appellee and the other youth, a struggle ensued and Begerow fell to the ground after receiving a blow to J:he face. Both youths began to run away, whereupon Begerow shot the appellee in the leg.

Appellee suffered permanent injury to his leg and in his suit against the officer and City for assault and battery, he contended his arrest was illegal because it was not based on probable cause. Appellee further contended that even if the arrest was legal, the officer used excessive force in preventing his escape. At trial, testimony showed that the individuals who got into the car had, in fact, stolen a radio from the van, but appellee Reed was not one of these individuals and had nothing to do with the theft.

Over the appellants’ objection, appellee introduced into evidence an order on the use of firearms issued by the St. Peters-burg Public Safety Agency which order was in effect at the time the officer shot the appellee. The order authorizes a police officer to use firearms to apprehend a fleeing felon, but only when the officer reasonably believes the fleeing person has committed either (1) a violent crime to the person of another, or (2) a crime against property that clearly demonstrates a wanton and reckless disregard for human life. Appellants contend that the court erred in admitting this order into evidence. We agree.

Under the decisional law of this state, when an officer has reasonable grounds to believe one has committed a felony, the officer is entitled to use force which is reasonably necessary to capture him, even to the extent of killing or wounding him. City of Miami v. Nelson, Fla.App.3d 1966, 186 So.2d 535; Gordon v. Alexander, Fla.1967, 198 So.2d 325. This rule has recently been codified in Fla.Stat. § 776.05, as amended by Ch. 75-64. This right does not depend on the type of felony which has been committed.

The law of Florida is in accord with the law elsewhere on this point. While the First Restatement of Torts, § 131 (1934), took the position that deadly force could be used to arrest only a felony which normally causes or threatens death or serious bodily harm, or involves breaking and entry of a dwelling, this position was later abandoned because “no case has been found which has cited § 131, or which is in accord with it.” Restatement of the Law, 1948 Supplement, P. 633. See also, Martyn v. Donlin, 1964, 151 Conn. 402, 198 A.2d 700; Alaniz v. Funk, 1961, 69 N.M. 164, 364 P. 2d 1033.

The effect of a departmental regulation limiting the right of a policeman to use deadly force was considered in an opinion of the Attorney General, 071-41. The opinion held that such regulation would be invalid.

Our sister court recently considered a similar issue in Chastain v. Civil Service Board of Orlando, Fla.App.4th 1976, 327 So.2d 230 (opinion filed February 20, 1976). The court held that Orlando Police Department regulations which limited the use of deadly force to arrest for infamous crimes, would be an applicable standard for the Police Department to follow in disciplining its own members, but there the court, by way of dictum, stated:

“There is no question but that if appellant were charged with a criminal offense such as aggravated assault, as in Dixon v. State, 101 Fla. 840, 132 So. 684 (1931), or his conduct were the basis of a civil action for damages against him individually or against his employer, as in Gordon v. Alexander, 198 So.2d 325 (Fla.1967) and City of Miami v. Nelson, 186 So.2d 535 (Fla.App. 3rd 1966), the standard or test of guilt would be whether appellant, in attempting to make the arrest or capture the escaping prisoner, had used more force than was reasonably necessary under the circumstances.”

The court concluded that the regulation would not affect the standard by which the officer’s criminal or civil liability was measured.

We agree with the Fourth District that in this suit for assault and battery, statewide standards for the use of deadly force must be controlling. Accordingly, introduction into evidence of the safety order was error.

Furthermore we are unable to say that such error was harmless. Appellee was initially arrested for the crime of breaking and entering an automobile; and, while such crime is a felony, it did not qualify under the public safety order as one where an officer was authorized to use deadly force. The jury verdict may well have been based on a finding that although Begerow made the arrest with probable cause, and even though firing his weapon was the only available means to apprehend appellee, Begerow was still not justified in using deadly force because no violent felony had been committed. The jury’s misapprehension may have been further compounded by the court’s failure to give appellants’ requested instruction 2.8 to the effect that resisting arrest with violence was a violent felony to the person of another as contemplated by the order. See, Fla. Stat. § 843.01. Where the evidence is inconclusive or conflicting, the failure of the trial judge to provide a charge which lays down standards for the jury to follow under varying permissible views of the evidence constitutes reversible error. Schweikert v. Palm Beach Speedway, Inc., Fla. 1958, 100 So.2d 804.

Accordingly, we reverse and remand for a new trial consistent with this opinion.

BOARDMAN, A. C. J., and GRIMES and SCHEB, JJ., concur.

ON PETITION FOR REHEARING

Appellees contend that we overlooked the fact that any error in admitting the order on use of firearms into evidence was rendered harmless by a later jury instruction which was substantially identical to Fla. Stat. § 776.05. However, this instruction did not refer to or expressly disapprove the order, or state that the order contained an incorrect statement of the law as applied to the facts of this case. We cannot rule out the likelihood that the jury was influenced by the ruling of the St. Peters-burg Public Safety Agency in reaching its decision.

Rehearing denied.

BOARDMAN, A. C. J., and GRIMES and SCHEB, JJ., concur.

      . “A law enforcement officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force whieh he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest or when necessarily committed in retaking felons who have escaped, or when necessarily committed in arresting felons fleeing from justice.”


source: Caselaw Access Project

author: LEE, Justice, for the Court:

license: Public Domain

text:
    William Parham BRIDGES v. Mrs. Loris C. BRIDGES.
    No. 48588.
    Supreme Court of Mississippi.
    April 13, 1976.

      W. E. Gore, Jr., John R. Countiss, III, Jackson, for appellant.
    Young, Young & Scanlon, Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice, for the Court:

Appellee filed suit against appellant in the Chancery Court of the First Judicial District of Hinds County, seeking separate maintenance, including construction of a new home, custody of and support for the minor child of the parties and reasonable attorney’s fees. Appellant denied the material allegations of the bill and filed a cross-bill for divorce on the ground of desertion.

The chancellor entered a decree ordering appellant (1) to construct a new home costing not less than one hundred thousand dollars ($100,000.00) nor more than one hundred twenty-five thousand dollars ($125,000.00) on property of appellee in Eastover and permitted him to place a first mortgage not exceeding fifty thousand dollars ($50,000.00) on the same, appellant to pay the installments on the mortgage; (2) to pay the last installment on appellee’s Eastover property when due; (3) to sell the jointly-owned home of the parties on Reddoch Drive and apply the proceeds to the construction of the new home; (4) to pay all monthly installments on the Red-doch home, including insurance and taxes, as well as all insurance and taxes on the new home to be constructed; (5) to pay to appellee the sum of six thousand dollars ($6,000.00) with which to discharge her accumulated debts and to pay the amount of bills incurred by appellee for herself and their minor child between March 26, 1974 and August 5, 1974, not to exceed three thousand dollars ($3,000.00); (6) to make available to appellee for her use and at appellant’s expense his yacht and personnel and facilities attendant thereto on a reasonable basis consistent with that she enjoyed prior to the separation; (7) to make available to appellee the facilities heretofore utilized by her at five social clubs, but not exceeding charges of one hundred dollars ($100.00) per month at each club; (8) to make available to appellee every third year a new automobile in the price range of a Thunderbird and with appellee have-ing exclusive use of the 1974 Thunderbird now operated by her; (9) to pay the sum of three thousand dollars ($3,000.00) per month additional support for appellee and the minor child and to pay school expenses and other expenses for said child; (10) to pay the balance of appellee’s attorney’s fees in the amount of two thousand nine hundred sixty-nine dollars and ninety-eight cents ($2,969.98).

Appellee was granted custody of the minor child with reasonable visitation- rights to appellant. She was ordered to convey unto appellant an undivided one-half (1/2) interest in her Eastover property upon which the new home was ordered to be constructed. No relief was granted under the cross-bill.

Appellant assigned nine errors in the decree of the court, but waived four of them by failing to brief and argue same.

I.

The court erred in entering a decree of separate maintenance for appellant.

Appellant contends that the court should not have decreed separate maintenance because he had not refused to support appel-lee and that, in fact, she was provided with more of the luxuries of life and had greater financial means and a higher standard of living than most women.

True, appellee had a comfortable home in which to live. Appellant had given her nine hundred dollars ($900.00) per month since their separation in October, 1971. She had charge accounts and enjoyed benefits of many social clubs, all paid for by appellant. She had a Thunderbird automobile provided by appellant. Without question, during the period of the separation from a financial standpoint, she has lived higher and better than most women.

However, the evidence reflects that prior to the suit, appellant had begun to restrict appellee in the things to which she had become accustomed. Part of her bills were sent back to her unpaid. Appellant wrote a letter to Mrs. Bridges’ doctor telling him that he would no longer be responsible for her medical bills. He stopped paying her psychiatric bills. He required her to return her air travel card and stopped her charging privileges at the Broadwater Beach Hotel. Appellee testified that she was no longer able to live in the manner she had become accustomed and that she no longer had a right to anything; that appellant threatened to take away from her the things he had previously provided, and that he proceeded to do so. She instituted the suit because “I prefer the security of knowing what I can and can’t do.”

In Etheridge v. Webb, 210 Miss. 729, 50 So.2d 603 (1951), this Court said:

“. . . The power to grant separate maintenance to a wife was based on (a) separation without fault on the wife’s part, and (b) willful abandonment of her by the husband with refusal to support her. These jurisdictional requirements for a separate maintenance decree have continued up to the present time.” 210 Miss, at 743, 50 So.2d at 607.

During the trial, the following stipulation was filed by the parties: “It is stipulated by and between the parties hereto that from August, 1971, to the present time, the defendant has been guilty of adultery with several different women.”

Thus, the appellee was justified in separating from appellant. That separation was without fault on her part and his admitted conduct constituted a willful abandonment of the marriage relationship. Then, to what support and maintenance is she entitled from her husband ?

Appellant has a net worth of six million dollars ($6,000,000.00). His annual income is in the bracket of two hundred fifty thousand dollars ($250,000.00) to three hundred thousand dollars ($300,000.00) per year. He owned a private Aero Commander type airplane replaced by a Cessna 340. He had a yacht which he kept at the Broadwater Marina and at the Racket Club in Miami. He had a penthouse on the Mississippi Gulf Coast. He permitted his wife to travel without restriction and to shop at exclusive department stores in New York, Chicago, Dallas, New Orleans, Las Vegas, and other large cities. The parties had and enjoyed everything they desired that money could buy. Their standard of living and life style were affluent and luxurious, and, by most standards, extavagant.

Even though appellant gave his wife substantial sums from 1971 to the date of suit, unquestionably her standard of living was far below that standard and style she enjoyed before the separation. The separation having occurred at the fault of appellant, she is entitled to the same standard of living she enjoyed before the separation. Refusal of the appellant to so provide is tantamount to a refusal to support appellee as set forth in Etheridge v. Webb, supra.

The principle of law is stated in Bunkley and Morse’s, Amis on Divorce and Separation in Mississippi § 7.04, at 205 (1957):

“Nor should the allowance be so large as to unduly deplete the husband’s estate or earning capacity and thus render it impossible for him to comply with the decree. The purpose should be to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife, all things considered, as she would have received in the home, if the parties had continued normal cohabitation, and the wife had helped in a reasonable way, in view of her health and physical condition. A decree for separate maintenance should not confer on the wife any greater rights than she would have had if the cohabitation had continued. It is merely an enforcement of the same rights which she had before separation.”

In Gardiner v. Gardiner, 230 Miss. 778, 93 So.2d 638 (1957), the Court said:

“The jurisdiction of the chancery court to make an allowance to a wife living apart from her husband for her separate maintenance is to be exercised according to equitable principles, and the amount to be allowed in any case in which such allowance may be properly made must be determined according to the facts disclosed by the record in that particular case, and is largely within the discretion of the trial judge. This Court will not undertake to substitute its judgment in such case for that of the chancellor unless it clearly appears that the chancellor has abused his discretion or has failed to apply correctly the equitable principles which govern in such cases.” 230 Miss, at 786, 93 So.2d at 641.

We conclude that the chancellor was correct in granting separate maintenance to appellee, and we cannot say that he abused his discretion and was manifestly wrong in allowing Items 2, 4, 5, 7, 8 and 9 set forth hereinabove and in granting custody of the minor child to appellee with reasonable visitation rights to appellant.

III.

The court erred in requiring appellant to build a new home for appellee.

IV.

The court erred in ordering appellant to sell the home occupied by appellee and invest the proceeds in a new home to be constructed, thereby divesting appellee of title to the property by judicial fiat.

VIII.

The finding of the chancellor is against the overwhelming weight of the evidence.

These three assignments of error deal with the decree of the chancellor directing the sale of the home of the parties and the construction of a new home and will be considered together.

The law is settled that a court cannot divest a husband of title to his property by judicial fiat or decree. This is true whether he is the sole owner or owner as tenant-in-common.

In McCraney v. McCraney, 208 Miss. 105, 43 So.2d 872 (1950), we said: “[W]e know of no authority for a court to divest the husband of the title to his property and to vest the title in the wife by judicial fiat or decree. . . .” 208 Miss, at 107, 43 So.2d at 873. That principle was reaffirmed in Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752 (1955).

In Jones v. Jones, 234 Miss. 461, 106 So. 2d 134 (1958), the Court ordered the husband to join in a conveyance of timber jointly owned by him and his wife, the proceeds of the sale to be applied to alimony for the wife. This Court had the following to say:

“We are of the opinion that the chancellor was without authority to require the appellant to join his wife in the execution of a deed so as to convey his one-half interest in the timber to anyone. He could only consider what income she would receive, and what means he would have, for supporting and maintaining her, and he should have left it to the determination of the husband as to how he would raise the funds with which he would meet the payments of alimony.” 106 So.2d at 136.

See also Hudson v. Hudson, 284 So.2d 299 (Miss. 1973).

If the Court has no authority to require the husband to divest himself of title to his property, why should it have the authority to require him to invest himself with title to property? We are of the opinion that the same rule applies. Even so, here the order for appellant to divest himself of title to his property and to invest himself with title to other property with the proceeds are so closely related that they must be considered together.

The fact that the parties planned to build a new home before their separation does not mean that those plans could be enforced after separation. While living together, the parties could have decided against building a new home or the husband may have changed his mind and decided not to build it. The court would have had no authority to require him to do so, nor does it have such authority after the separation.

We are of the opinion that the chancellor was in error in ordering appellant and appellee to sell the Reddoch Drive home, in ordering appellee to convey her undivided one-half (1/2), interest in the Eastover property to appellant, and in ordering appellant to construct a new home on the Eastover property. In view of this opinion, the assigned Error No. VIII is disposed of.

There is no merit in appellant’s contention that the court erred in declining to grant him a divorce on the ground of desertion. A sufficient answer is the stipulation, supra, entered into by appellant.

The attorney’s fees allowed in the lower court amounted to four thousand seven hundred eighty-seven dollars and fifty cents ($4,787.50). The motion for attorney’ s fees is sustained and fees for services here are allowed in the sum of two thousand four hundred dollars ($2,-400.00) being in round figures fifty percent (50%) of the attorney’s fees allowed in the trial court.

The decree is affirmed, except it is reversed and judgment entered here as to Paragraphs 2, 3, 5 and 11 of the decree, which require appellant to sell his interest in the Reddoch property, to build a new home on the Eastover property and to make available to appellee the yacht, personnel and facilities attendant thereto. The decree is also reversed and judgment entered here as to that part of Paragraph 4 which orders appellee to execute to appellant a deed conveying to him an undivided one-half (1/2) interest in the Eastover property, and the cause is remanded to the chancellor for the purpose of providing appropriate living quarters for appellee and the minor child, or, alternatively, an allowance for that purpose.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED TO THE CHANCELLOR FOR SUCH OTHER ORDERS WHICH MAY NOT BE INCONSISTENT WITH THIS OPINION.

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


author: BROOM, Justice:

text:
    Glen Miller LOPER v. STATE of Mississippi.
    No. 48767.
    Supreme Court of Mississippi.
    April 13, 1976.

      Lawyer & Hudson, Gulfport, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   BROOM, Justice:

This forcible rape case against Loper (appellant) was tried in the Circuit Court of Pearl River County. Appellant was convicted and he appeals from a sentence of sixty years’ imprisonment. We affirm.

Issues raised relate to: admissibility of evidence obtained without a search warrant, denial of a change of venue, admissibility of appellant’s confession and results of testing his blood, and sufficiency of the evidence.

During the morning of October 10, 1974, a fifty-two year old woman was raped by a man she identified as the appellant. He came to her home and asked to see her husband. Upon learning that the husband was not at home, appellant grabbed the woman, dragged her into the house, and held her around the neck for what to her “seemed like an eternity.” He raped her after threatening to take her life. As he left the house, appellant took with him the victim’s pistol which he had discovered on her chest of drawers. After the occurrence, the victim drove to the nearby house of Deputy Sheriff Bester, whose wife called the sheriff. While hospitalized (the next several days), the victim identified appellant by means of a photograph shown her. She also made an in-court identification of him based upon her observation during commission of the offense.

I.

Appellant argues that the trial court erred in admitting into evidence a pistol found in the back yard of the residence owned by appellant’s parents where he lived with them and other members of the family. Also in question is the admission into evidence of photographs taken in the back yard, depicting the pistol hidden in a . stack of concrete blocks and a pile of ashes and partially burned clothing. Testimony brought out at the hearing of appellant’s motion to suppress evidence shows that the law officers, in conducting their investigation shortly after the offense occurred, went to the residence of appellant’s family and asked if appellant were there. After being told he was not there, the officers walked back to their car and then were called back to the house by one of the occupants who spoke from inside it. It is not clear who called the officers back, but appellant’s brother, Edward Earl Loper, testified that either he or his mother called the officers. His mother stated that she did not know if he called the officers, but she did state that she saw them follow her son into the back yard. In the back yard the pistol and ashes were pointed out to the officers by Edward Earl who, along with appellant and others, was a joint occupant of the dwelling.

In this case the officers had no warrant when they (in appellant’s absence) went upon the property, procured the pistol, and took photographs which were admitted into evidence over appellant’s objection. The general rule is that a warrant-less search by law enforcement officers is per se unreasonable. There are exceptions to the rule, and one of the recognized exceptions is a consensual search. Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L. Ed. 1477 (1946). At issue is whether or not this case falls within that exception. Significant is the fact that the officers were invited onto the property by appellant’s mother or brother who, like the appellant, shared the residence with his parents and other family members.

United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), holds that:

[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared. (415 U.S. at 170, 94 S.Ct. at 993, 39 L.Ed.2d at 249).
[WJhen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it . may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. (415 U.S. at 172, 94 S.Ct. at 993, 39 L.Ed.2d at 249-50).

The appellant contends that his brother had no authority in the presence of their mother, who with her husband was joint owner of the property, to consent to the search; i. e., only she could grant permission. To so hold would have the incongruous effect of granting one brother standing to object on the basis of his relationship to the premises, while denying the other the authority to consent based on an identical relationship. Such a paradox would be devoid of logic. There is no allegation that the hiding place of the pistol was in any manner the exclusive personal domain of the appellant. The pistol was found in the back yard of the residence which, according to the evidence, was available for the common use of every occupant, including appellant and his brother, Edward Earl. As pointed out in Matlock, supra, common authority is not based upon the mere property interest of a third person, but upon mutual use of the property by persons generally having joint access or control for most purposes.

The evidence gained in the back yard of the premises was revealed to the law officers in this case by affirmative action of appellant’s brother absent any suggestion of any threats or coercion being brought to bear upon any person present. None of the officers’ actions were violative of the guarantees of the Fourth or Fourteenth Amendments to the United States Constitution, or section 23 of the Mississippi Constitution of 1890 against “unreasonable searches and seizures.” The trial judge, upon the evidence before him, in effect ruled that the search and seizure were not unreasonable, and we cannot say that he was manifestly wrong. This is not in conflict with Henry v. State, 253 Miss. 263, 154 So.2d 289 (1963), which held that a wife, who owned no interest in her defendant husband’s car parked in his driveway, could not on his behalf consent to a search of the car.

Our holding here is an application of the rule set forth in Haralson v. State, 318 So.2d 891 (Miss.1975), that a joint occupant (Haralson’s son) “had a right to retrieve the shotgun for the sheriff.” Thus under Mattock, supra, and Haralson, supra, the pistol and photographs were properly admitted into evidence.

II.

Another contention of the appellant is that the trial court erred in overruling his motion for a change of venue. In his brief appellant points out that appellant was removed from the Pearl River County jail to the Forrest County jail, and cites Seals v. State, 208 Miss. 236, 44 So.2d 61 (1950), and McGee v. State, 200 Miss. 350, 26 So.2d 680 (1946). Those cases do not hold that the removal alone would raise any irrebuttable presumption in favor of the appellant. Here the appellant’s application for change of venue was contested by the state, and a large number of witnesses testified that the case could be fairly tried in Pearl River County. Upon conflicting evidence, we cannot say that the trial judge abused his discretion in proceeding to trial in the county where the offense occurred. Saucier v. State, Cause No. 48,924 decided March 9, 1976, and not yet reported.

III.

Appellant also raises an issue related to the question of his mental competency and the voluntary character of a confession placed in evidence over his objection. Additionally, he contends that the court erroneously admitted into evidence results of a blood test and body examination of the appellant. The trial judge heard evidence that the appellant was beaten and threatened before he confessed and signed a waiver to the blood test made of his blood. All of the officers present testified and denied all of the allegations of threats, beatings or coercion. On October 12, 1974, Dr. Walrod, with appellant’s consent, examined his body, took a blood sample, and made a blood test. Revealed by the examination was a small laceration on appellant’s penis, but no evidence that he had been bruised or abused. As to the appellant’s mental capacity to appreciate the nature of the confession and to understand the consequences of the waiver that he signed, the trial judge was in the best position to consider appellant’s testimony and to observe his demeanor. His conclusions based upon his own observation and hearing of the witnesses are not manifestly erroneous, but supported by the record.

IV.

We find no merit in the appellant’s argument that the state failed to prove the essential elements of the crime and that the victim’s testimony was so inconsistent as to be against the clear weight of the evidence. Though she weighed nearly two hundred pounds, she was not physically strong and was in great fear for her life. The record shows that on the date of the offense Dr. W. F. Stringer, M. D., examined the victim and found her emotionally upset. He described numerous abrasions to her genital area and stated that he found evidence of her “having had sexual intercourse or some other means or trauma to her genital area.” Dr. Stringer also stated that he observed “tenderness in her abdomen,” and blood on her thighs, abdomen and clothing. His finding of the blood was compatible with the victim’s testimony that after the offense her assailant was bleeding and went to the bathroom to wash. Blood tests revealed that appellant’s blood type matched that left by the perpetrator of the crime in the bedroom where the offense occurred. Upon conflicing evidence the jury accepted the state’s case, and no reversible error is found in the record.

AFFIRMED.

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


text:
    COMPLETE AUTO TRANSIT, INC. v. Charles R. BRADY, Jr., Chairman, Mississippi State Tax Commission.
    No. 48590.
    Supreme Court of Mississippi.
    April 13, 1976.

      Butler, Snow, O’Mara, Stevens & Can-nada, Alan W. Perry, D. Carl Black, Jr., Jackson, for appellant.
    Joe D. Gallaspy, William N. Lovelady, Jr., James H. Haddock, Jackson, for appel-lee.
    Before GILLESPIE, C. J., and ROBERTSON, and LEE, JJ.
   GILLESPIE, Chief Justice, for the Court:

This case involves an assessment for sales taxes imposed upon Complete Auto Transit, Inc., a Michigan corporation (hereinafter Taxpayer). Taxpayer paid the taxes and filed suit in the Chancery Court of Hinds County to recover the sum paid. From a decree upholding the validity of the assessment, Taxpayer appealed to this Court.

Taxpayer is engaged in the business of hauling motor vehicles for General Motors Corporation. It is a certificated contract carrier operating throughout the United States pursuant to authority of the Interstate Commerce Commission. The Mississippi activity of Taxpayer requires the maintenance of a yard adjacent to a railroad at Jackson where an office, together with facilities for servicing Taxpayer’s trucks, is maintained. Taxpayer receives approximately 350 automobiles per day from General Motors Corporation with whom it has a contract which is renegotiated from time to time in order to assure Taxpayer a fair return.

The General Motors plant in Georgia assembles automobiles for delivery to dealers in Mississippi and surrounding areas in other states. A sticker is placed on each automobile when it leaves the assembly plant in Georgia showing the dealer to whom it is to be sold. The vehicles are then loaded on railroad cars with a bill of lading showing the consignee as General Motors, in care of Complete Auto Transit. The bill of lading also shows the name of the city to which each automobile is to be delivered but not the name of the dealer to whom it is to be sold. The automobiles are transported to Jackson, Mississippi, by railroad and are unloaded onto Taxpayer’s yard adjacent to the railroad. The bill of lading is then stamped “Received by General Motors Corporation, Chevrolet Motor Division, by Complete Auto Transit, Inc.” The vehicles are then inspected for damage, and Taxpayer prepares waybills showing the shipper as General Motors Corporation, the description of the automobiles, and the names of the consignees (General Motors dealers in cities other than Jackson). As soon as practical, usually within twenty-four to forty-eight hours, the vehicles are loaded on Taxpayer’s trucks and delivered to dealers at various points in and out of the State of Mississippi.

Taxpayer is paid on a contract basis, and ordinarily no bill is rendered by Taxpayer to General Motors Corporation. The entire transportation charge is collected by General Motors from the dealer who ultimately receives the vehicle. The charges paid by General Motors to Taxpayer for transportation of vehicles from Jackson, Mississippi, to various General Motors dealers within the state are readily separable from charges for transporting vehicles from Jackson beyond the borders of Mississippi. Likewise, the transportation charges paid the railroad company are in no way connected to the charges paid by General Motors to Taxpayer.

The question is whether the gross income derived by Taxpayer from transporting automobiles from Jackson to other points in the State of Mississippi is taxable by the State.

The statute levying the tax is Mississippi Code Annotated section 27-65-13 (1972), which provides:

There is hereby levied and assessed, and shall be collected, privilege taxes for the privilege of engaging or continuing in business or doing business within this state to be determined by the application of rates against gross proceeds of sales or gross income or values, as the case may be, as provided in the following sections.

The following sections, referred to in the statute, supra, describe the businesses taxed as “truck or any other transportation business for the transportation of property for compensation . . . between points within the state. . . . ” The amount of the tax is five percent of the gross income.

The general rule is that á state may tax a local activity affecting or related to interstate commerce if the local activity is sufficiently separate from the out of state aspects of interstate commerce. Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 68 S.Ct. 1475, 92 L.Ed. 1832 (1948). However, such a tax is invalid if there exists the danger that it can impose cumulative burdens on interstate commerce not borne by local commerce. General Motors Corp. v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964). The local activity taxed must be one that does not lend itself to repeated exactions in other states. Memphis Natural Gas Co. v. Stone, supra.

The present case is controlled by cases arising in this State. Interstate Oil Pipe Line Co. v. Stone, 203 Miss. 715, 35 So.2d 73 (Miss.1948), aff’d, 337 U.S. 662, 69 S.Ct. 1264, 93 L.Ed. 1613 (1949), involved the first leg of an interstate shipment. The tax was levied on the gross receipts from the operation of the oil piplines wholly within the State. Interstate operated pipelines which were used to transport oil from various fields in Mississippi to loading racks adjacent to railroads elsewhere in the State. From the racks, the oil was pumped into railroad tank cars for shipment outside the State. If no tank cars were available, the oil was stored in tanks near the loading racks for short durations until cars were available. When the oil was delivered to Interstate, it was accompanied by shipping orders from the producer or owner directing that the oil be transported to out-of-state destinations. There was no through bill of lading from the point of origin at the fields to the point of destination outside the State. Interstate was paid on a per barrel rate, specified in its tariff, for transporting the oil from the gathering point to the loading rack at the railroad. In upholding the validity of the tax, the Supreme Court of the United States said in a plurality opinion that it would not pause to consider whether the business of operating the pipeline was in interstate commerce, for the State had the power to impose the tax involved. The Court said that the tax was not invalidated by the commerce clause of the Federal Constitution merely because it imposed a direct tax on the privilege of engaging in interstate commerce. The Court concluded as follows:

Since all the activities upon which the tax is imposed are carried on in Mississippi, there is no due process objection to the tax. The tax does not discriminate against interstate commerce in favor of competing intrastate commerce of like character. The nature of the subject of taxation makes apportionment unnecessary; there is no attempt to tax interstate activity carried on outside Mississippi’s borders. No other state can repeat the tax. For these reasons the commerce clause does not invalidate this tax. The judgment is affirmed. 337 U.S. at 668, 69 S.Ct. at 1266, 93 L.Ed. at 1620-21.

A case involving the final leg of an interstate shipment is McKeigney v. Dunn Brothers, Inc., 224 Miss. 762, 80 So.2d 802 (1955), suggestion of error overruled, 81 So.2d 712 (1955), appeal dismissed sub nom. Dunn Brothers, Inc. v. Stone, 350 U. S. 878, 76 S.Ct. 139, 100 L.Ed. 775 (1955). In Dunn the tax was levied upon the activities of Dunn Brothers under the following state of facts. Tennessee Gas Transmission Company was engaged in constructing an interstate pipeline which crossed several states, including Mississippi. It purchased pipe for this purpose from California and had it delivered by common carriers to its right-of-way in Mississippi. To accomplish this, it had the railroad company deliver the pipe from the foundry in California to depots or rail heads in Mississippi as near to its right-of-way as was feasible. It engaged Dunn Brothers, a Texas corporation holding a certificate of public convenience and necessity for interstate commerce, to deliver the pipe by motor truck from the depots or rail heads in Mississippi to the rights-of-way of 'the transmission company. The transmission company, as consignor, shipped the pipe by railroad to itself as consignee to the various depots and rail heads in Mississippi. Bills of lading were issued accordingly. The transmission company paid the freight, and when the shipments arrived at the rail destination, an agent of the transmission company inspected and accepted the pipe. Dunn Brothers then took charge of the shipment, and with the transmission company as both consignor and consignee, unloaded the car and delivered it to the right-of-way, for which service the transmission company paid Dunn Brothers. Based on Interstate Oil Pipeline Co. v. Stone, supra, and other decisions of the United States Supreme Court, this Court held that the tax was validly levied.

More recently, this Court upheld a tax on the gross income derived from the operation of a television cable system where a percentage of the signals rebroadcast by the taxpayer were received from outside the State. Rhoden v. Goodling Enterprises, Inc., 295 So.2d 433 (Miss.1974).

In Convoy Company v. Taylor, 53 Wash.2d 439, 334 P.2d 772 (1959), the Supreme Court of the State of Washington upheld a tax on an activity almost identical to that involved in the present case. In Convoy, the proof showed that Ford Motor Company, the shipper in that case, maintained control of the automobiles shipped so as to protect itself if the dealer became bankrupt or failed to pay for the units.

In the present case, General Motors maintains control of the vehicles, at least until they are shipped out by Taxpayer. The automobiles are consigned to General Motors at Jackson and are their property to do with as they see fit until they are ultimately transported by Taxpayer to the purchasing dealer.

It will be noted that Taxpayer has a large operation in this State. It is dependent upon the State for police protection and other State services the same as other citizens. It should pay its fair share of taxes so long, but only so long, as the tax does not discriminate against interstate commerce, and there is no danger of interstate commerce being smothered by cumulative taxes of several states. There is no possibility of any other state duplicating the tax involved in this case.

For the reasons stated, we hold that the tax was valid and the decree of the trial court is affirmed.

AFFIRMED.

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


author: WALKER, Justice, for the court:

text:
    Milford L. WILLIAMSON v. STATE of Mississippi.
    No. 48830.
    Supreme Court of Mississippi.
    April 13, 1976.

      E. Howard Eaton, Taylorsville, for ap-ejjant
    A. F. Summer, Atty. Gen., by Billy Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before INZER, SUGG and WALKER, JJ-
   WALKER, Justice, for the court:

The appellant appeals from the imposition of a life sentence by the Circuit Court of Smith County, Mississippi, after having been convicted of the murder of his wife.

The appellant gave a statement to investigating officers the day after the fatal shooting that he and his wife had been arguing during which she told him she was pregnant by another man; and, that he followed her to her home and shot her from his pickup truck with a .20 gauge shotgun.

The defense was grounded on the theory of insanity.

I.

The appellant first contends that when a defendant files a suggestion of insanity and has been sent to the State Hospital for a mental evaluation, a grand jury should not be permitted to hear evidence with respect to the charge against him until the mental examination has been completed. This contention is wholly without merit. A grand jury is not charged with the responsibility of inquiring into the mental condition of a person accused of a crime and whose case is presented to the grand jury. However, if it should come to the attention of the grand jury, during the course of its investigation, that an accused is insane or so feebleminded that he or she was not responsible for his acts or omissions at the time when the act or omission charged was committed'or made, the grand jury should certify the fact to the circuit court as provided under Mississippi Code Annotated section 99-13-5 (1972). This does not mean, however, that a grand jury must delay acting on any case to await the outcome of the mental examination of an accused. The jurisprudence of this State includes adequate safeguards to protect all of the statutory and constitutional rights of incompetents who are indicted for the commission of crimes.

II.

The appellant contends that the entire testimony of Dr. Guild, a psychiatrist, who examined appellant over a period of two and one-half months on an average of three times per week at the Mississippi State Mental Hospital, should have been stricken on the grounds that it was partly based on information from psychological, neurological, medical and laboratory examinations conducted by other hospital personnel. However, an examination of the record reveals that, although Dr. Guild testified he used such reports in arriving at his ultimate opinion that the appellant was sane, there was no contemporaneous objection interposed by appellant specifying this ground as a basis for his objection. To the contrary, appellant’s counsel extensively cross-examined Dr. Guild and introduced into evidence some of the reports to which Dr. Guild referred and which contained information favorable to appellant. The appellant did not move to exclude Dr. Guild’s testimony until after several intervening witnesses had testified and the state had rested its case. We have held in numerous cases that a contemporaneous objection is necessary stating the specific reasons for the objection in order to preserve the point as error on appeal. Baker v. State, 327 So.2d 288 (Miss, handed down February 10, 1976) ; Thornton v. State, 313 So.2d 16 (Miss.1975); Ratliff v. State, 313 So.2d 386 (Miss.1975); Pittman v. State, 297 So.2d 888 (Miss.1974); Myers v. State, 268 So.2d 353 (Miss.1972). Since the point was not preserved, we do not reach the question of whether there was error in allowing the doctor to testify from the reports in question.

III.

The appellant next assigns that the court erred in allowing the state’s psychiatrist, Dr. Guild, to testify with reference to statements concerning the events surrounding the death of appellant’s wife made by the appellant to the doctor during a mental examination conducted pursuant to a court order. The appellant contends that admitting into evidence his statements to the psychiatrist violated his constitutional privilege against self-incrimination where his guilt or innocence as well as the question of insanity was at issue.

We held in Rogers v. State, 222 Miss. 690, 76 So.2d 831 (1955.) that the statute providing for a defendant’s mental examination by court-appointed experts is not unconstitutional on the ground of self-incrimination where the question of sanity is at issue. However, this Court has not addressed itself to the precise question of whether inculpatory statements made by an accused to a court-appointed psychiatrist with reference to events surrounding the crime charged are admissible. We are of the opinion that such inculpatory statements would not be admissible. An order permitting an examination of an accused, whether on motion of the state or the accused, should result in full, good-faith cooperation by the accused. The defendant should not fear that what he says may be used against him in a trial where the issue is his guilt or innocence of the offense charged. United States v. Albright, 388 F.2d 719 (4th Cir. 1968); State v. Whitlow, 45 N.J. 3, 210 A.2d 763 (1965); State v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967). Ordinarily, where there is a serious question of an accused’s sanity or competency to stand trial, that issue should be submitted to a separate jury prior to a trial on the merits of the charges against the accused. Olsen v. State, 224 Miss. 226, 79 So.2d 841 (1955); Robinson v. State, 223 Miss. 70, 77 So.2d 265, 83 So.2d 99 (1955); Rogers v. State, supra; Shipp v. State, 215 Miss. 541, 61 So.2d 329 (1952); Williams v. State, 205 Miss. 515, 39 So.2d 3 (1949).

In determining the issue of sanity, the privilege arising out of the relationship of physician and patient does not exist in the case of a court-ordered examination. Hopkins v. State, 212 Miss. 772, 55 So.2d 467 (1951).

We are of the opinion that no reversible error was committed under the facts presented in this case. The statements made to Dr. Guild during the course of the court-ordered mental examination were contrary to the account of the shooting that appellant gave in his confession which was admitted into evidence by the court after finding it was freely and voluntarily given. The appellant’s statements to Dr. Guild were exculpatory in nature as he told the doctor, in effect, that some third person fired the shots; and, that some of the shots struck his pickup truck in which he was sitting as well as hitting the deceased. Therefore, the admission of the statements through Dr. Guild was harmless error.

IV.

The next assignment is in relation to the testimony of Dr. Stary, head of the psychology department at the State Hospital, who was allowed to testify as to the appellant’s mental capability to knowingly and voluntarily waive his right to counsel and to remain silent. Appellant contends that the admission of the doctor’s testimony constituted reversible error because it was based upon the report of two clinical technicians who administered certain psychological tests to the appellant. The basis of appellant’s objection in the lower court was that the state had not shown that the persons who gave the tests were “licensed clinical psychologists, licensed by the State of Mississippi, to read and interpret psychological testing.” The appellent cites no authority to support this contention and we find it to be without merit. It is not necessary that the education of a technician whose duty it is to administer routine tests should reach such a high degree.

We do not reach the question of whether Dr. Stary’s testimony was based on hearsay. That proposition is raised for the first time on appeal and was not presented to the trial court for a ruling thereon. We have held in many cases that matters other than jurisdiction not raised in the trial court may not be raised for the first time on appeal. Seaney v. Seaney, 218 So.2d 5 (Miss. 1969); Stewart v. City of Pascagoula, 206 So.2d 325 (Miss.1968); Robertson v. Stroup, 254 Miss. 118, 180 So.2d 617 (1965).

V.

The appellant next urges that at the time he gave his statement to the investigating officers he was incapable of knowingly and intelligently waiving his right to remain silent and his right to an attorney. The thrust of this assignment of error is that the mental examination by the staff at the Mississippi State Hospital showed appellant to have an I. Q. of 76 which placed him in the category of “borderline retardation.”

The appellant relies heavily on Harvey v. State, 207 So.2d 108 (Miss. 1968), where this Court held that an objection to a confession should be sustained when it becomes apparent that an accused was not mentally capable of understanding the gravity of the charge against him or of understanding the meaning of a waiver of his constitutional right at the time of giving incriminatory statements. This stems from the general rule that the confession of an insane person cannot be admitted into evidence because he cannot waive his constitutional rights against self-incrimination. He cannot waive any rights because he does not know of his rights. Harvey v. State, supra; People v. Lambersky, 410 Ill. 451, 102 N.E.2d 326 (1951); State v. Padilla, 66 N.M. 289, 347 P.2d 312 (1959). However, a confession will not ordinarily be excluded merely because the person making the confession is mentally weak. Until it is shown that a weak-minded person has been overreached to the end that he has divulged that which he would not have divulged had he not been overreached, his voluntary confession is admissible. In Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922, 926 (1963), that Court said: “We have said that the question in each case is whether the defendant’s will was overborne at the time he confessed.” We recognize that the will of a person who is of weak intellect may be more easily overcome than that of one who is more intelligent; and, with this rule in mind and after applying the law to the facts in this case, we have reached the conclusion that the trial court properly admitted the confession into evidence. The state proved beyond a reasonable doubt, after taking into consideration appellant’s weak intellect, that he freely and voluntarily gave the inculpatory statement to the investigating officers.

We would point out again as we did in Ratliff v. State, 317 So.2d 403 (Miss.1975), that the voluntariness of a statement and its admissibility in evidence is a question for the court to determine and not a question for the jury.

Having carefully considered the assignments of error urged by the appelant and finding no reversible error, we are of the opinion that the judgment of the lower court should be and is affirmed.

AFFIRMED.

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

      . Weclisler Adult Intelligence Scale; Rorschach Ink Blot Test; Human Figure Drawings Test.


author: BROOM, Justice, for the Court.

text:
    Fredrick Douglas MAXIE v. STATE of Mississippi.
    No. 49015.
    Supreme Court of Mississippi.
    April 13, 1976.
    Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, WALKER and BROOM, JJ.
   BROOM, Justice, for the Court.

Validity of an indictment purporting to charge Maxie (appellant herein) with the crime of attempt to rape, and his standing to raise such issue is the crux of the case before us. Trial was in the Circuit Court of the First Judicial District of Hinds County where appellant was convicted and sentenced to serve a ten-year prison term. We reverse.

The charging part of the indictment is in the following language:

“[D]id unlawfully, wilfully, feloniously and forcibly attempt to rape and ravish . , a female above the age of twelve years, without the consent and against the will of . . . .”

No demurrer was filed by appellant, but at the close of the State’s case he moved for a directed verdict, and when both sides rested, he asked for a peremptory instruction.

Appellant was charged under Mississippi Code Annotated section 97-1-7 (1972), which was Mississippi Code 1942 Annotated section 2017 (1956).

As we held in Ford v. State, 218 So.2d 731 (Miss. 1969) indictments under this statute (which has been substantially unchanged since Hutchinson’s Code of 1848) must set forth two elements: (1) the intent to commit the offense, and (2) an overt act toward its commission. While Ford was not an attempted rape case, it was drawn under what is now section 97-1-7, supra. Hawkins v. State, 222 Miss. 753, 77 So.2d 263 (1955), an attempted rape case, held that such an indictment must allege “an attempt . . . coupled with an act toward it.”

State v. Lindsey, 202 Miss. 896, 32 So.2d 876 (1947), held that an indictment for attempted rape was insufficient though it alleged as an overt act that the defendant made the attempt “by stalking, chasing and running after” the victim. Such language was adjudged faulty because it could have been just as descriptive of an attempt to commit “murder, assault and battery, robbery or rape.”

Clearly the skimpy language of the present indictment rendered it so faulty as to be not curable by amendment, and it could not have properly withstood a demurrer at the trial level. However, the State (citing no authority) says the appellant has waived any error as to the sufficiency of the indictment “by failing to demur” to it. The correct rule is that if an indictment does not allege an essential ingredient of the crime charged, as is true here, such a defect is not waived by failure to demur. Watson v. State, 291 So.2d 741 (Miss. 1974); Meyer(s) v. State, 193 So.2d 728 (Miss.1967); Langford v. State, 239 Miss. 483, 123 So.2d 614 (1960).

As stated by Gillespie, P. J., in Meyer(s), unless we overrule the cited cases, “the present case must be reversed.” See Harris v. State, 329 So.2d 525 (Miss., handed down April 6, 1976), where in a contrasting case we upheld an indictment which properly charged the overt act in an attempted robbery case. Fairness requires that this case be reversed so that appellant may be tried upon a valid indictment.

REVERSED AND REMANDED WITH APPELLANT TO BE HELD UNDER BOND TO AWAIT FURTHER ACTION OF THE GRAND JURY.

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


text:
    Ronald Wayne KROHN v. Rebecca Lee Krohn FAYARD.
    No. 49107.
    Supreme Court of Mississippi.
    April 6, 1976.
    Hawkins & Henry, Biloxi, for appellant.
    Kelly McKoin, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

BEFORE THE COURT EN BANC.

Motion Denied.


text:
    John Henry CAIN et al. v. HOUSTON GENERAL INSURANCE CO. et al.
    No. 57830.
    Supreme Court of Louisiana.
    April 27, 1976.
   In re Jennie V. Cain, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of DeSoto, 327 So.2d 526.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in its judgment.

DIXON, J., takes no part.


text:
    John Henry CAIN et al. v. HOUSTON GENERAL INSURANCE CO. et al.
    No. 57844.
    Supreme Court of Louisiana.
    April 27, 1976.
   In re Edwina Lynn Cain applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of De-Soto, 327 So.2d 526.

Writ denied. Under the facts found by the court of appeal, there is no error of law in the judgment.

DIXON, J., takes no part.


text:
    John Henry CAIN et al. v. HOUSTON GENERAL INSURANCE CO. et al.
    No. 57864.
    Supreme Court of Louisiana.
    April 27, 1976.
   In re John Henry Cain applying for Department of Highways, applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, parish of De-Soto, 327 So.2d 526.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in its judgment.

DIXON, J., takes no part.


text:
    John Henry CAIN v. HOUSTON GENERAL INSURANCE CO. et al.
    No. 57894.
    Supreme Court of Louisiana.
    April 27, 1976.
   In re John Henry Cain applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of De-Soto.

Writ not considered; not timely filed.

DIXON, J., takes no part.


text:
    STATE of Louisiana v. Bruce LINEBAUGH.
    No. 57848.
    Supreme Court of Louisiana.
    April 23, 1976.
   In re: Harry F. Connick, District Attorney, Parish of Orleans, applying for writ of certiorari, mandamus, and prohibition and Stay Order.

Writ denied. No error in ruling of the trial judge.

SANDERS, C. J., is of the opinion that a writ should be granted.

SUMMERS, J., is of the opinion the writ should be granted.

CALOGERO, J., is of the opinion the writ should be granted.


author: DIXON, J., CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Ronald Ray WEATHERS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 57788.
    Supreme Court of Louisiana.
    April 23, 1976.
   In re: Ronald Ray Weathers applying for Writs of Habeas Corpus, Certiorari, Prohibition and Mandamus, 304 So.2d 662.

Writ denied. The ruling of the trial court is correct.

DIXON, J.,

dissents from the refusal. The applicant complains of ineffective assistance of counsel. The trial court did not rule on this contention. We cannot rule on it. There has been no evidentiary hearing and applicant has an absolute right to a judicial determination of the validity of his complaint of constitutional infirmity of his conviction.

CALOGERO, J.,

dissents. Applicant is entitled to an evidentiary hearing and a finding by the trial judge on his habeas contentions.

DENNIS, J., is of the view that an evi-dentiary hearing should be granted.


author: SUMMERS, J.,

text:
    BULK TRANSPORT, INC. v. The TRAVELERS INSURANCE CO. et al.
    No. 57770.
    Supreme Court of Louisiana.
    April 23, 1976.
   In re The Travelers Indemnity Co., Retail Clerks International Assoc., and Retail Clerks Union Local 1691a applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 330 So.2d 355.

Writ denied. The result is correct.

SUMMERS, J.,

is of the opinion the writ should be granted. The failure of the Court of Appeal is set forth in its opinion an independent finding of fact upon which its decision is based is error.


text:
    Mrs. Virginia WILKINSON, femme sole v. The TRAVELERS INSURANCE.
    No. 57768.
    Supreme Court of Louisiana.
    April 23, 1976.
   In re: Mrs. Virginia Wilkinson, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 330 So.2d 351.

Writ denied. The applicant does not demonstrate that the result is incorrect.

SUMMERS, J.,

is of the opinion the writ should be granted. The failure of the Court of Appeal to set forth in its opinion an independent finding of fact upon which its decision is based is error.


author: DIXON, J.,

text:
    SALSUL COMPANY v. Herman S. KOHLMEYER et al.
    No. 57654.
    Supreme Court of Louisiana.
    April 20, 1976.
   In re: Salsul Company applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 325 So.2d 858.

Writ denied. No error in result.

SUMMERS, J., is of the opinion the writ should be granted.

DIXON, J.,

dissents from the denial and is of the opinion the writ should be granted. There is no substantial reason to prohibit plaintiff from obtaining a judgment fixing the relationships between him and the partners pending the receivership proceedings. Creditors of the partnership can be adequately protected.

CALOGERO, J., is of the opinion the writ should be granted.


author: ■SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Ralph G. PORTER.
    No. 57107.
    Supreme Court of Louisiana.
    March 29, 1976.

      George C. Ehmig, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   ■SANDERS, Chief Justice.

The State charged Ralph Porter and William Taylor with armed robbery in violation of LSA-R.S. 14:64. On the morning of trial, William Taylor pleaded guilty as charged and was subsequently sentenced to serve ten years at hard labor. Ralph Porter was tried alone, found guilty as charged, and sentenced to serve twelve years at hard labor.

Ralph Porter appeals his conviction and sentence, relying on one assignment of error.

The background facts are these: On December 23, 1973, at about 2:00 o’clock a. m., two teenage boys, James Harrison and Glen Castin, were walking on the street in Algiers. Two men in a “silver colored” Pinto automobile approached them. The man riding in the passenger seat of the automobile got out and threatened the boys with a sawed-off shotgun, demanding their money, but after learning that they had no money, instructed them to take off their leather coats and give them to him.

The sole issue presented is whether the trial court abused its discretion in refusing to order a new trial. The defense contends that it discovered new evidence requiring that a new trial be granted under Louisiana Code of Criminal Procedure Article 851 (3), which provides:

“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
“The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by„ the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;”

The new evidence upon which the defense bases the motion for a new trial includes testimony by Norman B. Lamothe, Jr., a friend of the defendant for fifteen years, and photographs exhibited to James Harrison, a victim of the armed robbery, which included the photograph of Robert C. Douglas, better known as “Boogalee Red.”

Defendant asserts that the evidence adduced at the hearing on the motion for a new trial was important because defendant-Taylor, who pleaded guilty the morning of the trial, testified at Porter’s trial that he and Boogalee Red had committed the armed robbery and that Porter was in no way involved in the crime.

Therefore, he contends that because Lamothe’s testimony that two men, Boog-alee Red and William Taylor, offered to sell two leather coats to him corroborates Porter’s testimony at trial, this is new and material evidence that if introduced at the trial would probably have changed the verdict, as defendant was convicted by a nine to three vote. In addition, Lamothe testified that Boogalee Red stated that the coats were “hot.”

At the hearing, counsel for defendant and the State stipulated that prior to the hearing a photographic display had been presented to James Harrison. Six photographs were displayed in a manner satisfactory to the defense counsel. Those photographs included a picture of defendant, Ralph Porter, and a photograph of Boogalee Red. Harrison, the victim of the armed robbery, picked out the picture of Ralph Porter as the perpetrator of the crime.

On the basis of the evidence adduced at the hearing, the trial court judge denied defendant’s motion for a new trial.

Louisiana Code of Criminal Procedure Article 858 provides:

“Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.”

In State v. Jackson, 253 La. 205, 217 So.2d 372 (1968), we stated:

“ ‘Our jurisprudence is replete to the effect that the granting or refusing of motions for a new trial rests within the sound judicial discretion of trial judges, and great reliance is placed upon them by appellate courts that they will exercise that discretion well and soundly. State v. Bradley, 166 La. 1010, 118 So. 116; State v. Willburn, 196 La. 113, 198 So, 765; State v. Gray, supra [192 La. 1081, 190 So. 224]; State v. Washington, supra [36 La.Ann. 341]’.”

The testimony adduced at trial strongly supports the trial court’s denial of defendant’s motion for a new trial. Both robbery victims positively identified Ralph Porter and William Taylor as the armed robbers on numerous occasions. When asked to identify the armed robbers from mug shots which did not include the photographs of Taylor and Porter, neither victim was able to make an identification. When separately shown photographs including those of Taylor and Porter, both witnesses positively identified Taylor and Porter as the culprits. At a lineup including Taylor and Porter, both witnesses again separately identified them. In court, both witnesses again identified Porter as the man who had robbed them,. All of the identification procedures employed were standard police procedures, to which the defense counsel made no objection.

At the hearing on the motion for a new trial, defense counsel and the 'State entered into a stipulation to the effect that prior to the hearing, James Harrison, one of the victims, had again identified Porter as the robber from a group of photographs which included that of Boogalee Red, who Taylor testified was the person participating in the armed robbery.

Perhaps the most persuasive testimony came from the two victims who stated that although they did not know Porter personally, they had each seen him before this incident. In light of this evidence, it appears that the identification of Porter as the robber by the two eye-witness victims was entitled to added weight.

The victims’ identification of the robbers is in no way weakened by the fact that the robbery occurred during the early morning hours. The robbery occurred at the intersection of Verret and Diane Streets in Algiers, an area • illuminated by a nearby street light. Porter stepped out of the car and stood three feet from the victims for about fifteen minutes.

In view of all the circumstances, we hold that the trial judge did not abuse his discretion in denying the motion for a new trial. LSA-C.Cr.P. Arts. 851, 858; State v. Gibson, La., 323 So.2d 446 (1975); State v. Miller, 254 La. 73, 222 So.2d 862, cert. denied, 396 U.S. 1021, 90 S.Ct. 592, 24 L.Ed. 2d 513 (1969).

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

      . Because we find that the trial court’s denial of the motion for a new trial was not error, it is unnecessary to determine whether the procedural requirements for filing such a motion and appealing its denial have been met.