author: WALKER, Justice, SUGG, Justice, ROBERTSON, Presiding Justice,

text:
    Kenneth McDANIEL v. STATE of Mississippi.
    No. 50037.
    Supreme Court of Mississippi.
    March 15, 1978.
    Rehearing Denied April 12, 1978.

      Ronald N. Ashley, C. A. Henley, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen. and Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the court:

McDaniel was convicted of armed robbery in the Circuit Court of the First Judicial District of Hinds County, Mississippi. The jury found him guilty, but recommended leniency. The court sentenced McDaniel to fifteen years in the State penitentiary.

The record reveals that on September 20, 1975, at about 7:30 p. m., Reverend Joseph H. Booth and his wife went to Cook’s Lake, on the outskirts of Jackson, for a cookout. Booth testified that shortly after their arrival at the lake a white man with an eight-year-old boy drove up in a pickup truck. He told Booth and his wife:

I want to warn you all that there are some Negroes that are coming down to this lake and robbing people. Several nights ago, they robbed me. I’m down here with some guns in my pickup and I intend to shoot them.

(A police offense report indicated that defendant had been robbed by three black males approximately six weeks before the present occurrence. This robbery occurred in the City of Jackson at Woodrow Wilson Avenue and Whitfield Mill Road, as defendant sat in his car at a red light).

Subsequently, the Booths and McDaniel engaged in conversation, with McDaniel rebuilding the Booths’ fire after they had difficulty getting it going. At some point, Rev. Booth attempted to witness to McDaniel. McDaniel then became agitated and annoyed with Booth. When the defendant walked a short distance away, Mrs. Booth suggested to her husband that they go home. She walked to their car, and while Booth was emptying the hot coals out of the grill, defendant suddenly ran up behind him, put both arms around him, stabbing him with a knife in his left hand. He then told Booth that he knew Booth had a pistol in his pocket and told him to drop it. Throughout this, he was threatening to kill Booth. Booth dropped the .22 calibre pistol and defendant’s stepson picked it up and gave it to defendant. Defendant then cocked the gun, and still holding a knife to Booth’s throat, told the boy to get Booth’s pocketbook.

The defendant then kept Booth there for approximately thirty minutes. A police car approached with its lights on, (Mrs. Booth had run away at the beginning and had procured the aid of the police) and when McDaniel saw the approaching police car, he turned Booth loose and fled. The investigating officers, upon arrival, found defendant’s stepson still in defendant’s truck, with the keys in his pocket. The truck was registered in defendant’s name, but he was not found. The defendant was apprehended in Kentucky or Tennessee some thirty days later.

I.

At trial, the defense theory was that defendant was so intoxicated he could not form the requisite intent required for the commission of armed robbery.

At the outset, the proper standard concerning voluntary intoxication as a defense must be kept in mind. In Kelly v. State, 11 (3 S&M) Miss. 518 (1844), the standard was enunciated as:

. . it must be clearly proved, that, at the time of committing the act, the party accused was laboring under such a defect of reasons, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did understand them, that he did not know he was doing what was wrong. (Emphasis added). (11 Miss. at 528).

In Thurmond v. State, 212 Miss. 36, 53 So.2d 44 (1951), (a murder case) where the Court had under consideration the extent, if any, of voluntary intoxication which would reduce a crime from murder to manslaughter, an instruction was allowed which enunciated the standard as:

. it must be intoxication of such a degree as to render the slayer incapable of comprehending his relation to others, incapable of formulating an intent to kill, and unconscious of the nature and probable consequences of his act. (Emphasis added). (212 Miss. at 44, 53 So.2d at 46).

The Court then went on to point out that on the facts of the case they were not presented with intoxication which was “totally disabling.” Thurman v. State, supra; See also Kendall v. State, 244 Miss. 618, 145 So.2d 924 (1962).

Other authorities have been more specific requiring intoxication “. . .of that degree and extent as renders accused practically an automaton . . . .” Tate v. Commonwealth, 258 Ky. 685, 80 S.W.2d 817, 821 (1935) or that it is “[S]o extreme as to entirely suspend the power of reason.” People v. Lion, 10 Ill.2d 208, 139 N.E.2d 757, 760 (1957) or “impossible ... to form a criminal intent.” Gower v. State, 298 P.2d 461, 464 (Okl.Cr.1956).

It is clearly established in Mississippi that the credibility of witnesses is particularly within the province of the jury and not for the Supreme Court to determine on appeal. Murphree v. State, 228 So.2d 599 (Miss.1969). It is also well established that in reviewing the sufficiency of evidence to support a verdict, this Court must accept as having been established all that was proved by the evidence as well as all that such evidence reasonably tended to prove, together with all reasonable inferences to be drawn therefrom, favorable to the theory of prosecution. Carroll v. State, 196 So.2d 878 (Miss.1967). More specifically, this Court has pointed out on numerous occasions that where the defense theory is voluntary intoxication to such an extent as to render the defendant incapable of forming the necessary intent, “. . . the issue [is] a factual one and its resolution [is] peculiarly for the jury.” Berry v. State, 288 So.2d 457, 459 (Miss.1974) (with other cases collected therein).

When these standards are applied to the present case, the following is revealed by or may be inferred from the record:

The defendant was identified as being the perpetrator of the crime through the cumulative testimony of the victim, the victim’s wife, and the officers who found the defendant’s truck and stepson at the scene of the crime. The defendant does not deny the crime but only contends that he cannot remember because of alcohol induced amnesia.

The uncontradicted testimony accepted by the jury reveals that the defendant held a knife on the victim, actually cutting him, took his billfold, and upon the approach of a police car fled the scene. The act of fleeing in itself reflects a knowledge of wrongful actions. Additionally, his own wife testified that when he returned home at 11 p. m. (during the period he allegedly does not remember and was incapacitated to such an extent he could not tell right from wrong), he stated to her: “Well, even if they just want to talk to me, its still going to break parole. ... I just, I just can’t do that.”

Again, this indicates a conscious awareness of right and wrong and the ability to make a judgment. Other testimony tended to impeach the defendant’s alleged loss of memory, e. g., the jury must certainly have noted the telling fact that the defendant had no difficulty remembering exactly how much he had drunk (a fact necessary to his defense), but allegedly could remember nothing else.

It is argued by defendant that it is significant that he stated he thought the victim was the person who had robbed him previously, but the uncontradicted evidence tends to minimize the impact of any such statement. Without contradiction or even offer of contradiction by defendant’s witnesses, the record reveals that just minutes before such alleged statement was made, the defendant had been telling the victim that those who had robbed him were blacks and had warned his victims to be cautious. This illustrates a conscious knowledge of who had robbed him and belies the contention that a statement accusing his victim of robbing him shows that he could not tell right from wrong. Further, this is not a ease of an individual reduced by alcohol to total helplessness, but rather one where the individual was capable of conversing, building a fire, taking a gun from his victim, and driving an automobile, all when allegedly unable to form “intent.”

We are of the opinion that when the evidence is construed in the light most favorable to the verdict as found by the jury, as is the proper standard, there can be no doubt as to the correctness of the jury in disregarding appellant’s plea of intoxication as a defense.

II.

The case of Aetna Life Insurance Company v. Evins, 199 So.2d 238 (Miss.1967) relied on by appellant in support of his contention that the court and jury were bound to accept the opinion of his medical experts that he was unable to form the necessary intent to commit a crime is .patently inapplicable in the case sub judice. The thrust of this decision is that medical testimony may be conclusive where the subject matter under consideration is such that (1) a jury could have “no knowledge whatsoever except as conveyed by medical experts”, and (2) the medical testimony on the matter is undisputed. The effect of intoxication on persons, including its bearing on their ability to form an intent to do a specific act does not lie within the exclusive province of medical experts, nor is it “wholly beyond the range of the experience or observation of layman . . [including judges and jurors].” Kramer Service v. Wilkins, 184 Miss. 483, 488, 186 So. 625, 628 (1939). In addition, the medical testimony was not undisputed. It was self-contradictory or, at best, susceptible of two interpretations.

III.

Was the state’s failure to disclose certain investigative reports reversible error?

Eight days before trial, defendant filed a motion to compel production and disclosure. The motion was granted and among other things required the state to disclose information in the possession of the state which “may be favorable to the defendant and material to the issue of guilt or punishment and which in any manner may aid defendant in the ascertainment of the truth.”

The defendant alleges that the failure of the state to disclose two investigative reports containing alleged reports of exculpatory statements made by the defendant to the victim to the effect that appellant, at the time of the crime charged, was drunk and acting under the delusional belief that the victim was the person who had robbed him, constitutes reversible error under the holdings of the United States Supreme Court cases of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

In Brady, that Court ruled that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment . . . .” (373 U.S. at 87, 83 S.Ct. at 1196).

However, both Brady and Agurs involved situations where the prosecutor withheld or suppressed evidence which did not come to light until after trial and conviction of defendant. Here, to the contrary, the information involved was inspected by the trial court on no less than three occasions before or during trial, and the defendant through his own witnesses possessed knowledge of the existence of the reports and their content, most probably long before trial but definitely by time of trial.

Defendant’s own witness, Dr. Guild, testified that on the night of the incident he was functioning as a deputy sheriff of Hinds County and that he was present at the interview from which the investigative reports in question were made. At trial, defendant’s attorney on direct examination asked:

Was there a variance in the doctor’s— in the Reverend’s testimony today as to what it was when you originally talked with him on September 20th?

Dr. Guild then answered:

There was a variance.

Subsequently, on cross-examination of Dr. Guild, when asked why he thought the defendant had a delusional belief, he said:

A. The first indication would be statements that indicated at the time that he was suffering from a delusional belief when those individuals had significantly no reason to falsify it.
Q. They didn’t. Who were these people?
A. These people would be the victim and his wife.
Q. The victim and his wife told you things that led you to believe that he was having a delusion?
A. That is correct.

Clearly the alleged variance in testimony was put before the jury to consider for whatever weight or impeachment value it might have.

Again, on cross, Dr. Guild stated:

A. I think what really did it was the statement that all of this bizarre behavior, that he was acting strange, peculiar, unusual, whatever you want to call it, strange, peculiar, unusual, I think the key statement, if you have to get down to the absolute key statement, the statement was that statement made by the victim that he said that Mr. McDaniels told his son to get his wallet, to get my wallet. He told his son to get my wallet. I think that is — if you’ve got to hang your hat on one thing, and it’s not on one thing, but that’s probably the most convincing thing of all. (Emphasis added).
Q. Okay. And just being drunk and saying that wouldn’t be enough, would it?
A. No.

Furthermore, the defendant’s attempts to impeach the victim and his wife on cross-examination reveal that the information was in his possession at the time of trial:

Q. Reverend Booth, have you made a statement to the authorities at the time this incident occurred, a previous statement?
A. Ask the question again, sir.
Q. Have you already related this story to the authorities — did you, at the time the incident occurred, relate your story, just as you told it to me today, to the authorities then?
A. I told them some of the same identical things that I have told you. Those little things they asked, that’s what existed and that’s what I told them.
Q. And you have already told them that today?
A. Today?
Q. You had already given them a statement, had you not?
A. Oh, yeah, we talked, certainly we talked.
Q. Who did you give that to?
A. To the deputies.
Q. Of the Hinds County Sheriffs Department?
A. That’s correct.

Examination of the victim’s wife revealed:

Q. I see. Okay. Have you given any previous statements as to what happened that night to the police or the Hinds County Sheriff’s Department?
A. Yes, sir, to the Hinds County Sheriff’s Department.
Q. You did?
A. Yes, sir.
Q. Were your statements then substantially the same as they are now?
A. Yes, sir.
Q. Did you tell them then, at that time, that the man that attempted to rob your husband was drinking quite heavily and that — let me finish it — and that he kept saying, “I want my billfold back. You have my wallet.” Did you tell them—
A. I wasn’t there when anything went on about the wallet.
Q. I see. Did you tell them anything in regard to him drinking quite heavily at that point?
A. I told them that I thought he was drinking, because he sent the little boy and got this bottle in the bag.
Q. I see. I see. But it’s your testimony today that you don’t feel like he was drunk, is that right?
A. Yes, sir.
Q. Let me ask you this question.
A. Yes, sir.
Q. Did you make the statement that the man that was there that night appeared to be drunk?
A. I said he appeared to be drinking. I’m sure. I don’t think that I used the word drunk. I shouldn’t have if I did.

The combined effect of this testimony is to demonstrate that the defendant had knowledge of the existence and content of the statements in the investigative reports prior to the trial. Additionally, here, the existence of this alleged variance in statements was placed before the jury for its consideration by the above quoted testimony. Therefore, we hold that where, as here, the defendant had knowledge, before trial, of the existence and content of the material in the possession of the prosecutor, it may not thereafter be claimed that such material was suppressed. In such cases, there is no violation of the principles announced in Brady and Agurs.

The judgment of the lower court is affirmed.

AFFIRMED.

SUGG, BROOM and LEE, JJ., concurring.

SUGG, WALKER, BROOM and LEE, JJ., specially concurring.

ROBERTSON, P. J., PATTERSON, C. J., and SMITH, P. J., dissenting.

BOWLING and COFER, JJ., took no part.

SUGG, Justice,

specially concurring:

I agree that the reasons stated in Justice Walker’s majority opinion are sufficient to require affirmance of this case; however, I suggest another reason for affirmance, namely, voluntary intoxication by a defendant should not be permitted as a defense if a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of reason by intoxication, and commits an offense while in that condition.

At the outset, it should be noted that our decisions dealing with the question of whether voluntary intoxication of a defendant should be submitted to the jury as a defense in specific intent cases are conflicting. As stated in Kendall v. State, 244 Miss. 618, 145 So.2d 924 (1962):

The many cases on voluntary intoxication in this and other states are candidly impossible to reconcile. (244 Miss. at 623, 145 So.2d at 926).

For ready reference our cases involving voluntary intoxication as a defense are listed in the appendix in two classifications with the cases appearing in chronological order in each classification.

The first case where voluntary intoxication was considered was Kelly & Little v. State, 11 Miss. (3 S&M) 518 (1844). The defendants argued that, from the fact of their intoxication, the jury could infer the want or absence of a premeditated design to commit murder. The state was granted an instruction that drunkenness is no excuse for crime. Defendants were refused an instruction that the jury was entitled to regard “a state of serious intoxication” as an element in determining whether a premeditated design existed. The Court stated that “no injury occurred to the prisoners” because they were convicted of manslaughter. The Court noted that the instruction requested by the defendants had reference only to a single instance of intoxication and had no reference to well defined and unmistakable insanity produced by a long continued or excessive use of intoxicating stimulants. The Court then stated the common law rule as follows:

Legal writers, from the earliest times to the present, agree that mere drunkenness is no extenuation or excuse for crime in the view of the law. ‘He who is guilty of any crime whatever, through drunkenness, shall be punished for it as much as if he had been sober.’ 1 Hawk. P.C. 3. ‘A drunkard,’ says Lord Coke, ‘is volun-tarius doemon, and hath no privilege thereby.’ Judge Story, commenting on the same subject, says: ‘If persons willfully deprive themselves of reason, they ought not to be excused one crime by the voluntary perpetration of another.’ (11 Miss. (3 S&M) at 527).

In disposing of the argument of the defendants that intoxication could be considered as a circumstance from which a jury could infer the want or absence of a premeditated design to commit a felonious act, the Court stated:

The fact of the party being intoxicated, has, indeed, been holden to be a circumstance proper to be taken into consideration, where the sole question is, whether an act was premeditated, or done only with sudden heat and impulse. The same may as truly be said of the passion of anger, or any other excitement arising from sudden provocation or peculiar circumstances. But how slight that consideration should be in the instance of intoxication, is readily conceived from the as equally just presumption, that the design to commit a crime may have previously existed or been contemplated, and the intoxication have been employed ‘to screw the courage to the sticking place.’ Hence it is, that the law discriminates between the delusion of intoxication and the insanity which it may ultimately produce. For if the mere fit of drunkenness is always to be held as an excuse for crime, there is at once established a complete emancipation from criminal justice. (11 Miss. (3 S&M) at 527, 528). (Emphasis Supplied).

The holding in Kelly & Little permits insanity as a defense even if it results from prolonged use of intoxicants, however, it does not permit voluntary intoxication as a defense. The test under Kelly & Little is whether a defendant, when sober, is capable of distinguishing between right and wrong.

This was the construction placed on Kelly & Little, supra, by this Court in Melton v. State, 155 Miss. 659, 124 So. 802 (1929). In this case Melton’s defense was that he was in such a state of complete intoxication at the time of the homicide he was utterly destitute of reason and wholly incapable of forming a premeditated design to commit murder. In an opinion by Justice Griffith, the Court cited Kelly & Little, supra, as authority for the rule that, in a prosecution for homicide, voluntary intoxication is no defense because a person is responsible for his acts committed while in a state of voluntary intoxication. The Court stated:

The record shows that, while the deceased was attempting to do a friendly act towards appellant, and without any reason on the part of anybody there present to suspect danger, appellant suddenly announced with an oath that he was going to kill deceased, and immediately shot him. Upon such a record we would be at a loss how or where to draw a line between partial intoxication, and the so-called complete intoxication. The dangerous ground that would be entered upon in the attempt to draw such a line admonishes us against the venture, and compels us to remain within the established doctrine that voluntary intoxication is no defense.
‘Such a principle is absolutely essential to the protection of life and property. In the forum of conscience there is no doubt considerable difference between a murder deliberately planned and executed by a person of unclouded intellect, and the reckless taking of life by one infuriated by intoxication; but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of individual conduct. But there is, in truth, no injustice in holding a person responsible for his acts committed in a state of voluntary intoxication. It is a duty which every one owes to his fellow-men and to society, to say nothing of more solemn obligations, to preserve, as far as it lies in his own power, the inestimable gift of reason. If it is perverted or destroyed by fixed disease, though brought on by his own vices, the law holds him not accountable. But if by a voluntary act-he temporarily casts off the restraints of reason and conscience, no wrong is done him if he is considered answerable for any injury which in that state he may do to others or to society.’ People v. Rogers, 18 N.Y. 9, 18, 72 Am. Dec. 484, 488, 489. (155 Miss. at 661, 662, 124 So. at 802, 803). (Emphasis Supplied).

Melton was quoted with approval in Thurmond v. State, 212 Miss. 36, 53 So.2d 44 (1951) and Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961). In Stokes, the Court stated:

The appellant complains of the refusal of the instructions on intoxication. Voluntary intoxication is no defense in a murder case. (240 Miss. at 472, 128 So.2d at 348.

The first case' which indicated that voluntary intoxication may negate specific intent was Long v. State, 163 Miss. 535, 141 So. 591 (1932) where the Court stated:

It is no defense to a crime, so far as the manslaughter feature is concerned, that the party was so drunk, if he was in fact so drunk, as to not know the nature of the crime he was committing. His being drunk was his voluntary act. He deliberately and purposely drank the liquor, and prepared and consented for the party at which the liquor and women were to be used. In no circumstances could he be justified in placing himself in such intoxicated condition that he would not know the nature of his act, and then set up his voluntary act in bringing about this condition as a justification or excuse of what he did.
This court has frequently decided that voluntary intoxication is no defense to a crime, unless a specific intent is necessary to constitute crime, and that a person cannot take advantage of a situation he has placed himself voluntarily in. Melton v. State, 155 Miss. 659, 124 So. 802; Butler v. State (Miss.) 39 So. 1005; Gordon v. State (Miss.) 29 So. 529; Kelly v. State, 3 Smedes & M. 518, and decisions of other states to the same effect. (163 Miss. at 547, 141 So. at 593) (Emphasis Supplied).

The cases cited in Long simply do not support the statement in the opinion that voluntary intoxication is no defense to a crime, unless a specific intent is necessary to constitute the crime.

The first case decided by this Court involving the defense of voluntary drunkenness in a case other than a homicide case was Edwards v. State, 178 Miss. 696, 174 So. 57 (1937), which involved the larceny of an automobile by a sixteen-year-old youth. The Court held that the offense of larceny required proof of specific intent and, if the youth was so intoxicated he did not know what he had done, and had no intention of keeping the automobile, and if the jury so found then he was not guilty of larceny. The Court held that an instruction for the state which told the jury that voluntary drunkenness was no defense was error in a prosecution for grand larceny because specific intent is a necessary element of grand larceny. In Edwards the following statement was made:

Drunkenness is at least quasi criminal, and if a person while voluntarily drunk commits a criminal act, the drunkenness supplies the criminal intent, except where a specific intent is necessary to constitute the crime charged. (178 Miss. at 698, 174 So. at 58).

The rule was stated in this case that, if a person, while voluntarily drunk, commits a crime, the general criminal intent will be supplied by the drunkenness, but specific intent will not be supplied by the drunkenness. It is difficult to justify the exception made in Edwards, supra, with respect to “specific intent” crimes because it is just as logical to supply “specific” as “general” intent from the acts of the accused. There is no valid reason to supply general criminal intent in offenses committed by a person who is voluntarily intoxicated and refusing to supply specific intent in offenses committed by a defendant who is voluntarily intoxicated where specific intent is an element of the offense. This is in accord with the holding in other states. For example, in State v. Jordan, 285 Mo. 62, 225 S.W. 905 (1920) the Missouri Supreme Court stated:

[T]he general and, we may say, the almost universal rule, to which we have always adhered in this state, is that the defense of voluntary drunkenness cannot be interposed to an offense committed as the immediate result of such drunkenness, and, although there may be no criminal intent, the law will by construction supply same; this under the well-recognized principle that one who voluntarily assumes an attitude likely to produce harm to others, despite any specific intention to injure, is responsible for the consequences of his act. Coke, Litt. 247a. (225 S.W. at 906, 907).

The Missouri rule is sound because, if a person by a voluntary act temporarily casts off the restraints of reason and consciousness, no wrong is done him if he his held accountable for any injury which he may do to others or to society while in that state.

It should be remembered that, when Edwards, supra, was decided, the only statutory authority for suspension of sentences was section 99-19-25 Mississippi Code Annotated (1972) (then Section 1298 Mississippi Code of 1930) which authorized the circuit and county courts to suspend sentences in misdemeanor cases only. The “probation and Parole Law” was amended by Chapter 262 Mississippi General Laws 1956, and in sections 10 and 11 the statutory authority of circuit and county courts to suspend sentences was extended to include felonies. Before 1956 the circuit and county courts had no statutory authority to suspend sentences in felony cases. In Edwards the Court was faced with a sixteen-year-old youth who stole an automobile while drunk. To avoid the harshness of the common law rule that voluntary intoxication is not a defense, the Court adopted the rule in Edwards. In my opinion the reason for the rule no longer exists because under the Probation and Parole Act the trial judge, when sentencing a defendant who is voluntarily intoxicated, may consider this fact as a mitigating circumstance in determining whether to suspend the imposition or execution of a sentence. This alternative was not available to the Court when Edwards was decided, so at least part of the reason for the exculpatory rule no longer exists.

For a time following Edwards, the Court expressed uncertainty about the rule announced therein because in Wixon v. State, 229 Miss. 430, 90 So.2d 859 (1956) the Court approved an instruction which stated that voluntary drunkenness is no excuse or justification for the commission of a crime because one cannot take advantage of a situation in which he has placed himself voluntarily by being drunk or drinking. In approving the instruction the Court relied on Thurmond v. State, 212 Miss. 36, 53 So.2d 44 (1951). Wixon argued that he should have been granted an instruction permitting the jury to acquit him if it found from the evidence that he was intoxicated at the time of the offense, and such intoxication incapacitated him from forming a deliberate design to kill the victim. The Court held that it was not error to refuse the instruction, and stated:

Without our so deciding, it may be that in a case where the evidence justifies it this instruction should have been given, but the appellant’s own testimony shows that he was not entitled to it in the case at bar. (229 Miss. at 436, 90 So.2d at 862).

Following this statement the Court then delineated evidence which showed that Wixon was able to describe the events at the time of the shooting and concluded that, even though he was drunk, he was not entitled to the instruction. The statement that, “It may be that in a case where the evidence justifies it this instruction should have been given,” indicates some uncertainty about the holding in Edwards, especially in view of the later statement in Stokes v. State, supra, (1961) that voluntary drunkenness is not a defense.

However, Edwards was followed in a number of cases authorizing submission to the jury the question of whether a defendant was intoxicated to the extent that he was not capable of forming the specific criminal intent to commit an offense where specific intent is a necessary element of the offense. These cases are listed in the second classification in the appendix and have culminated in the principle that voluntary intoxication is not ordinarily a defense except where such intoxication rises to the level of the standard defense of insanity, namely, inability to know right from wrong. This rule was stated in Berry v. State, 288 So.2d 457 (Miss.1974) as follows:

Mere voluntary intoxication is not ordinarily a defense and is a defense when, and only when, such intoxication exists to a degree or extent which renders an accused incapable of forming the necessary intent to commit the crime charged and incapable of knowing right from wrong. Upon the evidence in this case the issue was a factual one and its resolution was peculiarly for the jury. Ladner v. State, 231 Miss. 445, 95 So.2d 468 (1957); McFarland v. State, 212 Miss. 802, 55 So.2d 457 (1951); McPherson v. State, 208 Miss. 784, 45 So.2d 589 (1950); Edwards v. State, 178 Miss. 696, 174 So. 57 (1937). (288 So.2d at 459)

Further discussion of specific cases from this Court are not necessary because it is apparent that our treatment of voluntary intoxication as a defense creates an anomalous situation. A drunk may be totally absolved of committing a serious offense where specific intent is an element of the offense, but be convicted of other equally serious offenses which do not require a showing of specific intent. Further, a review of manslaughter cases under our culpable negligence statute reveals that simple negligence in automobile cases is sometimes raised to culpable negligence because of the intoxication of the offender.

The exculpatory doctrine permitting voluntary intoxication as a defense in specific intent crimes has developed since our decision in Edwards, supra. We should reexamine this doctrine because the premise on which Edwards was decided is not sound as heretofore discussed. Until Edwards was decided in 1937, and in later cases, we have followed the rule that if a person committed a crime while voluntarily intoxicated to the extent that he was unable to distinguish between right and wrong, such intoxication did not operate as complete emancipation from criminal justice.

For many years we followed the common law rule as an absolute by reasoning that there is no injustice in holding a person responsible for crimes when committed in a state of voluntary intoxication. This is a sound rule because if a person casts off the restraints of reason and consciousness by a voluntary act, no wrong is done to him if he is held accountable for any crime which he may commit in that condition. Society is entitled to this protection.

A majority of the justices participating in this decision having concurred in the views expressed herein, we hereby adopt the following rule: If a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.

This is a proper case in which to adopt the foregoing rule because McDaniel’s sole defense was that he was so intoxicated that he was not able to distinguish between right and wrong; therefore, all cases listed in the appendix authorizing submission to a jury the question of voluntary intoxication as a defense in specific intent offenses are hereby overruled insofar as they conflict with the rule announced herein.

Adoption of the above rule does not prohibit a trial judge, when sentencing a defendant, from considering voluntary intoxication as a mitigating circumstance in the light of all the surrounding circumstances.

WALKER, BROOM and LEE, JJ., join in this specially concurring opinion.

APPENDIX

HOMICIDE CASES:

1844 - Kelly & Little v. State, 11 Miss. (3 S&M) 518 (Convicted of Manslaughter)

1901 - Gordon v. State, 29 So. 529 (Convicted of Murder)

1906 - Butler v. State, 39 So. 1005 (Convicted of Murder)

1929 - Melton v. State, 155 Miss. 659,124 So. 802 (Convicted of Manslaughter)

1932 - Long v. State, 163 Miss. 535,141 So. 591 (Convicted of Manslaughter)

1933 - Cole v. State, 170 Miss. 800,150 So. 757 (Convicted of Murder)

1941 - Hand v. State, 190 Miss. 314, 200 So. 258 (Convicted of Manslaughter)

1949- Gaddis v. State, 207 Miss. 508, 42 So.2d 724 (Convicted of Murder)

1951 - Thurmond v. State, 212 Miss. 36, 53 So.2d 44 (Convicted of Murder)

1961 - Stokes v. State, 240 Miss. 453,128 So.2d 341 (Convicted of Murder)

1973 - Bieller v. State, 275 So.2d 97 (Convicted of Manslaughter)

CASES INVOLVING OTHER OFFENSES:

1937 - Edwards v. State, 178 Miss. 696,174 So. 57 (Grand Larceny)

1943 - Bullock v. State, 195 Miss. 340,15 So.2d 285 (Burglary)

1949 - Edwards v. State, 207 Miss. 328, 42 So.2d 230 (Grand Larceny)

1950 - McPherson v. State, 208 Miss. 784, 45 So.2d 589 (Robbery)

1951 - McFarland v. State, 212 Miss. 802, 55 So.2d 457 (Burglary)

CASES INVOLVING OTHER OFFENSES:

1956 - Wixon v. State, 229 Miss. 430, 90 So.2d 859 (Assault and Battery With Intent to Kill and Murder)

1957 - Ladner v. State, 231 Miss. 445, 95 So.2d 468 (Burglary)

1959 - Best v. State, 235 Miss. 318,108 So.2d 840 (Grand Larceny)

1962 - Kendall v. State, 244 Miss. 618,145 So.2d 924 (Indecent Assault on Female Child)

1968 - King v. State, 210 So.2d 887 (Grand Larceny)

1974 - Berry v. State, 288 So.2d 457 (Attempted Armed Robbery)

1974 - Ryals v. State, 305 So.2d 354 (Assault and Battery With Intent to Kill and Murder)

ROBERTSON, Presiding Justice,

dissenting:

I respectfully dissent.

McDaniel testified that he started drinking early on the morning of September 20th and continued to drink throughout the day, drinking over an eight-hour-period a case of beer and three fifths of brandy. He remembered nothing after driving to his garden with his wife, and in the early afternoon sowing some turnip seed. However, he did remember waking up late that night in the garden and walking home.

Linda McDaniel, defendant’s wife, testified that he had had three six-packs of beer and a fifth of brandy, and had started on another fifth of brandy by noon of the 20th; that they had worked in the garden that morning and had returned home and, while she was preparing supper and he was in the backyard with the little boy, she heard him drive off in his truck. She stated that he was pretty drunk at that time. He returned home about 11:00 p.m. Mrs. McDaniel further testified:

“Well, I was trying to ask him what had happened because from what the police had told me, they told me something real sketchy and I didn’t know what had happened even and I asked him what had happened and he just kept saying over and over to me, T got my billfold back.’ And I said, ‘What are you talking about?’ And he said, T got my billfold back.’ And when I talked to the policemen, they told me there had been — when they told me about there being a fight, I said, ‘Was — ’ inquired of them if it was a white man or black man and they said that it was a white man and so I said to him, I said, ‘What do you mean your billfold?’ I said, ‘It was supposed to have been black men that robbed you.’ And he said, ‘Well, I don’t care. I don’t know how he got it, but he had it and I got it back.’
“Q. Would you describe your husband’s physical state at that time?
“A. He was really drunk then.”

Dr. Donald C. Guild, Director of Forensic Psychiatry, Mississippi State Hospital, personally interviewed and examined the defendant at the Hospital. He also referred defendant to Dr. C. S. Stanley, the staff psychologist at Whitfield, for extensive psychological testing. Dr. Guild had studied Dr. Stanley’s findings from the tests given when he [Guild] testified:

“[I]t is my opinion that in these circumstances to a medical probability, he did not have the capacity for the alleged incident that occurred at that time.
“I think that at the time of the crime he was in a state of such alcoholism that he had what we term as organic brain syndrome, confusion. It resembles a severe mental illness. It is temporary in nature and induced by alcohol. I think that at that time he was confused; he was disorganized; he rambled; he would not connect one statement to another; he would repeat himself; he was rather disorganized. I think also at that time he had the delusional belief that would come and go, back in and back out in different forms, that he, the victim of this act, was indeed the person that had relieved him of his wallet earlier. He was rather disorganized and this delusional belief was rather fragmented. It wasn’t very well put together. He was quite disorganized from all evidence that we can gather.
“I don’t think he did know the difference between right and wrong.” (Emphasis added).

Dr. Stanley, the staff psychologist, when offered as a rebuttal witness by the State, testified:

“I have trouble with the term steal, because in the state that he was in, he seemed to genuinely believe that he was taking back his own wallet.” (Emphasis added).

Dr. Stanley answered questions of the district attorney:

“It would be very difficult, Mr. Peters, to resurrect that particular situation again, because a lot of things came together at once. His wallet had been stolen in the recent past. This — we have reason to believe this, that he really is telling the truth. He had a very interesting relationship with this minister in that it started off to be a friendly relationship and then all of a sudden, the minister, I think, changed that relationship by preaching at him .
“On the other hand, he has virtually no unconscious inhibitory controls. Thus, when he becomes intoxicated and his conscious controls slip, he must tend to be openly hostile, aggressive, and if provoked, assaultive. In view of his use of projection, it should be pointed out that as often as not, the provocation will be imaginary rather than actual. And I think this is what happened.”
“Q. So, in your opinion, there’s just no way for us to really tell whether or not he could tell the difference in right and wrong, is that right?
“A. That’s essentially correct.”

The court asked this question:

“Did you testify that you, in your opinion, he genuinely believed that he was taking back his own wallet?”

And Dr. Stanley answered:

“I have no reason to disbelieve that— what he said or what was brought out in testimony that he really believed that he was taking back his own wallet. He was taking it back in a highly inappropriate manner, but I think he probably really thought that it was his wallet. This would be a characteristic of alcoholic paranoia.
“BY THE COURT: Is that your opinion in this case?
“A. I think so. Yes, sir, that is my opinion in this case, that he really did have the delusion that he was taking back his own wallet.” (Emphasis added).

The heart of the defense was that the defendant did not have the specific intent to commit the crime of armed robbery, either because he was so drunk that he could not form the specific intent, or that he was acting under the delusion (admittedly imaginary) that Reverend Booth had robbed him of his wallet some two weeks before, and that he was merely taking back his own property.

The defendant is correct in his argument that specific intent is a necessary element of the crime of armed robbery.

In Thomas v. State, 278 So.2d 469 (Miss.1973), this Court said:

“This Court has consistently reminded the Bench and Bar that specific intent to steal must be shown by the testimony in robbery cases.
“In Cooper v. State, 218 So.2d 874 (Miss.1969) we said: ‘Specific intent must be shown under the armed robbery statute. Miss. Code 1942 Ann. § 2367 (1956).’ 218 So.2d at 876.
“We said in Thomas v. State, 165 Miss. 897, 148 So. 225 (1933) that: ‘Under the law intent to steal is an indispensable element of robbery. . . . 165 Miss. at 902, 148 So. at 225. This is the general rule. See 77 C.J.S. Robbery § 22(a), at 462-463 (1952).” 278 So.2d at 472. (Emphasis added).

On August 2, 1976, eight days before the trial, the defendant filed a detailed motion to compel production and disclosure. On August 5, 1976, the court entered an order directing:

“[T]he State to disclose and, in the case of a tangible item, to produce for inspection and copying by the Defendant’s counsel:
“1. All evidence, information, statements, documents, reports and all other matters pertaining or related to or connected with this case now in the possession and control of the State, when the same may be favorable to the Defendant and material to the issue of guilt or punishment and which in any manner may aid Defendant in the ascertainment of the truth.” (Emphasis added).

The State failed to disclose, until after the trial was completed and the defendant convicted, two investigative reports: one by Hinds County Deputy Sheriff Billy Baldwin that Booth stated:

“[T]hat he [Kenneth McDaniel] started accusing him of being the one who robbed him some weeks earlier”;

and the other investigative report by Hinds County Deputy Sheriff Griffin that Booth stated:

“That the Defendant, ‘had the little boy take his billfold from his pocket,’ and that the Defendant ‘told the little boy “see if my driver’s license is in his pocket”,’ and that the Defendant accused Joseph H. Booth ‘of being the person who had previously robbed him.’ ”

When testifying at the trial, Booth, on cross-examination, when asked the question: “Did he ever make mention that he thought you had his wallet?”, said: “No, sir. No way. None.”

In my opinion, the State committed fatal error when it failed to furnish these two investigative reports to the defendant in accordance with the lower court’s order.

The statements of Booth made to Deputy Sheriffs Baldwin and Griffin on the night of the robbery, September 20, 1975, would have been invaluable to the defendant in refreshing Booth’s memory when he testified on August 10,1976, almost a year later, as to exactly what the defendant had said when he robbed him of his wallet. These statements of Booth on the night of September 20, 1975, were exculpatory of defendant and were very material on the issue of guilt or innocence of the defendant.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court said:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. (Emphasis added).

This “material” standard is discussed in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), wherein it is stated:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” 427 U.S. at 112-113, 96 S.Ct. at 2401-02, 49 L.Ed.2d at 354-55. (Emphasis added).

The Mississippi Uniform Criminal Rules of Circuit Court Practice cover this particular situation like a blanket:

“The prosecution shall disclose to each defendant or his attorney, upon request and without further court order, the following:
“(6) Copy of any exculpatory material concerning defendant.” Miss.Unif.Crim. R.Cir.Ct.Prac. 4.06 (1977), at pages 49-50. (Emphasis added).

I would reverse and remand for a new trial, on the ground that the State committed fatal error when it failed to disclose to the defendant, in accordance with the Circuit Court’s order, the two investigative reports of law officers containing “exculpatory material concerning defendant.”

PATTERSON, C. J, and SMITH, P. J., join in this dissent.

      . The Court voiced disapproval of the instruction, but only to the extent that it indicated the presence of such a degree of intoxication would automatically reduce the crime from murder to manslaughter. Subsequent cases have held no degree of intoxication will automatically reduce murder to manslaughter. Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961).

      . There are at least five other states which hold that voluntary intoxication is not a defense to a criminal charge, and these states apply the rule as an absolute. These states are listed in 8 A.L.R.3d Voluntary Intoxication — Defense, 1236 at page 1240 (1966) as Georgia, Missouri, Texas, Vermont and Virginia. In some of the states the rule arises by statute and in others by judicial decision.


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    J. Q. RHYMES v. STATE of Mississippi.
    No. 50327.
    Supreme Court of Mississippi.
    March 22, 1978.
    Houghton F. Elias, Jr., Cleveland, for appellant.

      A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

J. Q. Rhymes was convicted in the Circuit Court of Bolivar County for rape of his seven-year-old daughter and was sentenced to life imprisonment, from which conviction and sentence he appeals.

I.

Appellant contends that the trial court erred in that the indictment was fatally defective and omitted an essential element of the crime charged against him.

The indictment charged the following: “That J. Q. Rhymes ... on the 12th day of March A.D., 1976 . did then and there wilfully, unlawfully and feloniously make an assault in and upon the body of one . . . [name omitted] and he the said J. Q. Rhymes, was then and there a male person, and she the said Myra Katrana Brooks was then and there a female child under the age of 12 years; and he, the said J. Q. Rhymes, did then and there wilfully, unlawfully and feloniously rape, ravish and carnally know the said Myra Katrana Brooks, in violation of Section 97-3-65(1) of the Mississippi Code Annotated (1972).”

Appellant argues that the indictment charges he violated Section 97-3-65(1), Mississippi Code Annotated (1972), without adding the words “as amended.” Further, that Section 97-3-65 was the pertinent section of Mississippi Code Annotated (1972), and that Section 97-3-65(1), which was in effect at the time of the alleged crime, was an amendment to Mississippi Code Annotated (1972) by the 1974 Supplement.

Section 97-3-65 provided punishment for rape of a female child under the age of twelve (12) years at death, unless the jury fixed the punishment at imprisonment in the penitentiary for life. Section 97-3-65(1) fixes the punishment at death with no provision for life imprisonment. Section 99-17-20, Mississippi Code Annotated (1972), as amended by the 1976 Supplement, provides that where a crime is punishable by death, the offense shall be specifically cited in the indictment by setting forth the section and subsection number of the Code defining the offense alleged to have been committed by the accused and that any conviction for such offense shall not be valid unless the offense shall have been set forth in the indictment by section and subsection.

In Bell v. State, 353 So.2d 1141 (Miss.1977), the trial court permitted amendment of the indictment in order to include the section and subsection of Mississippi Code Annotated section 97-3-19(2)(e) (Supp. 1977), as amended, to comply with Section 99-17-20, and said:

“The appellant first complains the indictment should have been quashed because it failed to cite and define the offense charged. The indictment as initially written and without its formal parts charged: ‘. . . did willfully, unlawfully, and feloniously, and of his malice aforethought, kill and murder Michael Romanoff, a human being, while in the commission of the crime of armed robbery, or in an attempt to commit armed robbery.’ It was amended prior to trial so as to charge: ‘. . . did willfully, unlawfully, and feloniously, and of his malice aforethought, kill and murder Michael Romanoff, a human being, while in the commission of the crime of armed robbery, or in an attempt to commit armed robbery, in violation of Section 97-3-19(2)(e)of the Mississippi Code of 1972, as Amended, . . (Emphasis added.). It thus satisfies Mississippi Code Annotated section 99-17-20 (1972) which requires the indictment of any crime punishable by death to cite the section and subsection of the code defining the offense alleged to have been committed. See Varnado v. State, 338 So.2d 1239 (Miss.1976). As the amended indictment correctly cites the statute defining capital murder when homicide occurs during the commission or attempted commission of a robbery, we conclude this assignment of error is without merit.” 353 So.2d at 1142-1143.

The purpose of referring to the section and subsection is to inform the defendant specifically of the charge against him. Appellant admits that the indictment would have been sufficient, if the two words “as amended” had been added following the reference to “Mississippi Code Annotated (1972).” However, when appellant turned to Section 97-3-65, Mississippi Code Annotated (1972), he immediately was put on notice that the section had been amended and that he should turn to the supplement for the amendment.

In Westmoreland v. State, 246 So.2d 487 (Miss.1971), the Court cited with approval the following statement from 41 Am.Jur.2d Indictments and Informations § 88 (1968):

“In some jurisdictions, there are statutes providing that the statutory provision alleged to have been violated shall be set forth, and it has been held that a statute providing that it shall be sufficient to charge the defendant by using the name and article number of the offense committed is void, but citation of the wrong statute in an indictment or information will be treated as mere surplusage when objection thereto is first raised on appeal unless it appears that defendant was misled or prejudiced.” (Emphasis added). 246 So.2d at 492.

The Eighth Circuit Court of Appeals discussed the question in Jackson v. United States, 325 F.2d 477 (8th Cir. 1963), and said:

“Defendant’s claim that he cannot be sentenced under 21 U.S.C. § 174 as amended because the indictment referred only to 21 U.S.C. § 174 without adding the words ‘as amended’ is plainly frivolous and it warrants no prolonged discussion. Obviously, a citation to an existing official code section includes all amendments thereto then in force.” 325 F.2d at 479.

Appellant made no objection to the sufficiency of the indictment nor did he challenge its validity in the trial court by demurrer or otherwise. We are of the opinion that a citation to an existing Code section includes all amendments thereto then in force, that the indictment was amendable and that, if defective at all, it was only a formal defect, which, if properly brought to the attention of the court, would have been amended. We note that in Jackson v. State, 337 So.2d 1242 (Miss.1976), this Court considered the effect of Section 99-17-20 insofar as it pertained to granting instructions in a capital case and stated:

“We have concluded that the provision of section 99-17-20 prohibiting the granting of jury instructions as to lesser included offenses, constitutes an impediment to full and complete administration of justice in the trial of capital cases and is therefore not binding on the courts in the trial of these cases.
We therefore hold that, when warranted by the evidence, the trial court may instruct the jury with reference to lesser included offenses. However, such an instruction should not be indiscriminately or automatically given, as was condemned in Roberts [v. Louisiana] supra, 428 U.S. [325] at 334, 96 S.Ct. [3001] at 3007, 49 L.Ed.2d [974] at 982, but should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence.” 337 So.2d at 1255.

We hold that appellant was adequately informed of the charge against him, that Section 99-17-20 was substantially complied with, and that no prejudice resulted to appellant by failure to include the words “as amended” after reference to the section and subsection of the Mississippi Code of 1972.

Appellant contends that the indictment was also defective for the reason that it did not charge appellant’s age to be above eighteen (18) years. The statute provides a lesser sentence for an accused whose age is between thirteen (13) and eighteen (18) years. The amended Section 97-3-65(1) simply modified the punishment prescribed for a person within such age limits. The proof was undisputed that appellant was thirty-two (32) years of age at the time of the crime and the reduction of punishment as to persons within the 13 to 18 age group could not be prejudicial to appellant. Moreover, the trial court declined to submit the case to the jury on the death penalty.

We are of the opinion that the indictment was sufficient and valid and that there is no merit to assigned error No. I.

II.

Appellant contends that the court erred in failing to examine the prosecutrix to determine her competency as a witness.

The child was seven (7) years old at the time of the crime and eight (8) years old at the time of trial. Appellant did not request the court to examine this witness in the absence of the jury to determine whether she understood the significance of an oath or whether she was otherwise qualified. The record does not indicate that she was not qualified to testify on account of her age. Appellant urges us to declare a new procedure through this Court’s inherent rule-making power whereby trial court judges would be required to personally examine child witnesses before allowing them to testify. We note through experience that usually trial judges do satisfy themselves children of tender age are competent and qualified before admitting their testimony. Additionally, there is a duty upon the party against whom such witnesses are introduced to request an examination of them in the absence of the jury for the purpose of determining competency. In Wilson v. State, 221 So.2d 100 (Miss.1969), the Court stated the rule pertaining to competency of children as follows:

“The competency or incompetency of children to testify is largely an issue within the sound discretion of the trial judge. Of course, the parties to the litigation may examine the witnesses, on voir dire, but the duty to determine the competency of children witnesses is for the trial judge to decide from his voir dire examination of the witnesses.” 221 So.2d at 102.

See Perkins v. State, 290 So.2d 597 (Miss.1974).

After preliminary questions, the district attorney asked the prosecutrix the following questions:

“Q. OK. Now, Skippy, you know the difference between right and wrong don’t you?
# * * * * *
A. Yeah.
Q. You know what it is to tell the truth?
A. Yes.
Q. Are you going to tell the truth today?
A. Yes.”

On cross-examination, appellant’s attorney asked the prosecutrix the following questions:

“Q. All right. Now, Skippy, do you know the difference between the truth and a lie?
A. Yes.
Q. Do you know what we call a little white lie, have you ever heard that expression?
A. No.
Q. No. Well, have you ever told a lie?
A. Yes.
Q. You have. Well, what’s the difference between telling the truth and telling a lie?
A (NO RESPONSE).
Q. Is it important that you tell the truth?
A. Yes.
Q. And you know how important it is that we’re here today, don’t you?
A. Yes.
* * ‡ Hi $ $
Q. You forgot. Your’re telling the truth today?
A. Yes.
Q. Are you sure about this, Skippy?
A. Uh huh.”

The above examination indicates that the child knew the meaning of telling the truth. The cross-examination by appellant waived his challenge to the competency of such witness. Jackson v. State, 158 Miss. 524, 130 So. 729 (1930).

III.

Appellant contends that the evidence does not support the verdict and that his motion for a directed verdict at the close of the State’s case should have been granted.

Appellant chiefly argues that the State failed to prove penetration of the victim’s privates. Without detailing the evidence, the record indicates overwhelmingly that there was such penetration. She bled, was hurt, torn and lacerated and ran from appellant to the bathroom where she hid. Although appellant testified that he was intoxicated and that he did not commit the act, when his wife arrived at home after the child had been attacked, appellant stated to her that he was sorry and that he tried to stop. A Dr. Green examined the child shortly after the assault and found extensive tissue damage or tearing in the lower part of the child’s vagina and in the adjacent tissues, which required sutures. There was profuse bleeding and the child remained in the hospital four (4) days. The child said, “He stuck his thing in my booty.” The doctor’s examination did not indicate any penetration or damage in her anus. The fact of penetration need not be proved where it is shown that the private parts of the female (under the age of twelve years) have been lacerated or torn in the attempt to have carnal knowledge of her. Section 97-3-65(1), Mississippi Code Annotated (1972), as amended.

We are of the opinion that the verdict was amply supported by the evidence and that there is no merit in the third assignment of error. Gandy v. State, 355 So.2d 1096 (Miss.1978); Warn v. State, 349 So.2d 1055 (Miss.1977); Cochran v. State, 278 So.2d 451 (Miss.1973).

For the reasons stated, the judgment and sentence of the trial court are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


author: ROBERTSON, Justice,

text:
    Johnnie Mae PETERSON v. STATE of Mississippi.
    No. 50285.
    Supreme Court of Mississippi.
    March 22, 1978.
    Rehearing Denied April 12, 1978.

      Blackmon, Smith & Nichols, Edward Blackmon, Jr., Canton, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice,

for the Court:

Johnnie Mae Peterson was indicted by the Circuit Court of Madison County for the murder of Henry Hardin. The jury returned a verdict of manslaughter. She was sentenced to 20 years in the custody of the State Department of Corrections.

The appellant assigns as error:
The trial court erred in not granting appellant a peremptory instruction;
and
The verdict of the jury finding the defendant guilty of manslaughter is contrary to the law and the weight of the evidence.

Around 8:00 P.M. on November 28, 1976, outside Cooper’s Liquor Store in Canton, Henry “Sonny Man” Hardin was killed with one shot from a .32-caliber, five-shot revolver. The bullet entered his left chest, perforated the left lung, and then perforated the aorta. The path of the bullet was almost perpendicular to Hardin’s body. A chrome-plated, five-shot revolver was found about 12 inches from the body. It contained three spent shells and two empty chambers.

Defendant Peterson testified that she and Hardin had been going together for about 4 years, and that Hardin had a key to her home. She stated that they enjoyed a harmonious relationship until Hardin, unbeknown to her, took her pistol from her home. She found out that he had her pistol when he drew it on her around Thanksgiving. She got her house key back from him, but he would not return her pistol.

On November 28 the defendant was working as a cook at “The Scene”, a cafe and tavern in Canton. Hardin arrived about 7:00 P.M. and they talked for a few minutes. Leroy Luckett testified that they were talking in a low tone and did not appear to be arguing. After about 20 minutes, Hardin left and Luckett heard defendant say “she would get Sonny Man before in the morning”.

A little later, defendant got a phone call from her son-in-law, requesting that she come home because the lights were out and her daughter-in-law was scared and might have a miscarriage.

Because it was raining and sleeting, Amos Hamblin agreed to drive her home. On the way home, defendant asked Hamb-lin to stop at a cafe where she saw Hardin’s car. Defendant testified that she wanted to get Hardin “cause he always know how to work that switch box in the storage room”. Hamblin testified:

“She said, ‘I’ll be right back.’ I said, Johnnie, please don’t start anything.”

Mrs. Peterson stated that she and Hardin went outside the cafe to talk and he pulled a gun on her. Although Hardin was a 200-pound man, she said that she snatched it away from him, and that they started tussling, and the gun just went off. During the scuffle, “Sonny Man” Hardin was shot one time in the left chest and she was shot one time, the bullet entering above her right knee and exiting below her right knee. She ran to Hamblin’s car, hollering that Sonny Man was shot and that she was shot. She was taken to the hospital, where her wound was found to be a flesh wound and after treatment she was released. “Sonny Man” was taken to the hospital in an ambulance and was pronounced dead on arrival.

Charles Blount, an 18-year-old boy, testified that he was in a phone booth about 3 yards from Mrs. Peterson and Hardin. Blount testified:

“I heard Mrs. Peterson say, ‘go on, go on Sonny Man, I’m goin’ in my purse and get a cigarette.’ ... He said, ‘naw, Johnnie,’ he said, naw, that’s all I heard.”

Blount stated that they were fighting when he heard some shots. Blount saw Hardin fall and noticed that the defendant had “something shiney in her hand”. On cross-examination he testified that defendant said “Go on Sonny Man, leave me alone”, and that Hardin was swinging when the shots were fired. Blount said he heard three shots and two snaps and did not see who had the gun during the struggle.

Defendant contends that the rule announced in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933) should apply. That rule is:

“[W]here the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” 165 Miss. at 209, 147 So. at 482.

We are of the opinion that the Weathers-by rule would not apply in this case because the defendant’s version is substantially contradicted in material particulars by credible witnesses for the State, and also by the physical facts and by the facts of common knowledge. Also there is both direct and circumstantial evidence in this case.

The defendant would have the Court believe that even though she and “Sonny Man” Hardin were outside in the sleet and rain that she opened her purse just to get a cigarette; that although Hardin weighed 200 pounds and she weighed 161 pounds, she took the pistol away from Hardin when he pulled it on her; and that somehow during their struggle by accident the pistol was fired five times. Although defendant testified that she knew Hardin had taken her pistol some several days before the shooting, she had not reported the theft nor had she made any lawful attempt to recover her pistol.

Luckett testified that she said “she would get Sonny Man before in the morning,” and Amos Hamblin testified that when Johnnie Peterson asked him to stop the car so she could go in the cafe and get Hardin he said, “Johnnie, please don’t start anything”.

The testimony is clear that she had threatened to get Hardin and that she had sought him out.

The jury who heard the testimony and observed the demeanor of the defendant and each witness was certainly justified in finding the defendant guilty of manslaughter beyond a reasonable doubt. While the sentence of 20 years seems rather severe, the trial judge also heard and observed the defendant and each witness. The court might well have thought that the jury could have returned a verdict of murder, instead of manslaughter.

We find no reversible error in the record and the verdict and sentence are, therefore, affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    S. W. CRAFT v. SMITH COUNTY BOARD OF SUPERVISORS.
    No. 50194.
    Supreme Court of Mississippi.
    March 29, 1978.
   Appeal from Circuit Court, Smith County; George B. Grubbs, Judge.

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

AFFIRMED.


text:
    HANCOCK BANK, Trustee for the Estate of Anna F. C. Martin, Deceased, et al. v. Mrs. Mabel W. MARTIN et al.
    No. 50051.
    Supreme Court of Mississippi.
    March 29, 1978.
    Eaton, Cottrell, Galloway & Lang, Ben H. Stone, Gulfport, for appellants.
    Roberts & Easterling, M. M. Roberts, Hattiesburg, Gwin & Gwin, L. C. Gwin, Jr., Natchez, Teller, Rogers & Teller, Landman Teller, Vicksburg, for appellees.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.

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


author: SUGG, Justice, for the Court.

text:
    Roger CLEMONS v. STATE of Mississippi.
    No. 50320.
    Supreme Court of Mississippi.
    March 29, 1978.
    Boudie A. Jaggers, Pontotoc, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   EN BANC.

SUGG, Justice, for the Court.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    George Boyce ROBINSON v. STATE of Mississippi.
    No. 50329.
    Supreme Court of Mississippi.
    March 29, 1978.
    Caldwell, Lee, Richardson, Vance & Medley, L. Joe Lee, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

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

AFFIRMED.

PATTERSON, C. J., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


author: BOWLING, Justice,

text:
    James Harold WILBURN, Jr. v. STATE of Mississippi.
    No. 50383.
    Supreme Court of Mississippi.
    March 29, 1978.
    Fraiser, Burgoon, Henson & Abraham, James W. Burgoon, Jr., Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, James Harold Wilburn, Jr., was indicted, tried and convicted in the Circuit Court of Carroll County for the crime of rape and sentenced to serve a term of twenty years under the custody of the Mississippi Department of Corrections. He appeals and we reverse and remand for a new trial.

The decision of the issues in this appeal and the resulting opinion is based solely on legal considerations and has nothing whatever to do with the facts presented by the evidence at the trial or the guilt or innocence of the appellant.

Appellant alleges the following assignments of error:

1. The lower court erred in overruling and denying appellant’s motion for special venire under the provisions of Mississippi Code Annotated section 13-5-77 (1972).
2. The lower court erred in limiting appellant to only six peremptory challenges, when under the law, appellant was entitled to twelve.
3. The lower court erred in refusing to declare a mistrial on timely motion of appellant when the state’s attorneys, knowing the same to be improper, violated the rule which had previously been invoked and instructions of the court by collectively conferring with all the state’s witnesses in the presence of each other.

In the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court held that the death penalty could not be carried out under certain “capital cases” which previously carried that penalty for persons convicted. Prior to Furman there were certain procedural benefits given to persons charged and tried for crimes known as “capital crimes” and crimes included in the term “serious criminal offenses.” Since Furman the Legislature has enacted certain statutes to comply with that opinion. The duty of this Court now is to set out clearly what procedural benefits remain and are available to persons charged with the stated crimes.

It is necessary for the Court to analyze the legislative enactments since Furman and to interpret the legislative intent. This necessarily includes a consideration of prior opinions of this Court as they apply and correspond with that legislative intent.

There are several procedural statutes involved in this decision. Three of them are at the threshold of the appeal in the present case. They are Mississippi Code Annotated sections 13-5-77, 99-15-27 and 99-17-3 (1972). All of these statutes were a part of the Mississippi Code long before Furman.

Section 13-5-77 provides:

When any person charged with a capital crime, or with the crime of manslaughter, shall have been arraigned and the plea of not guilty entered, it shall be the duty of the court, upon the demand of the accused or the district attorney, to cause to be drawn, in open court, from the jury-box as many names as the judge in his discretion may direct, not to be less than forty, and it shall be the duty of the clerk to issue a special venire facias, commanding the sheriff to summon the persons whose names are so drawn, to attend the court on a particular day to be named in the writ. .

This is what is commonly known as the “special venire” statute.

Section 99-15-27 provides:

Any person indicted for a capital crime shall, if demanded by him by motion in writing before the completion of drawing of the special venire, have a copy of the indictment and list of the special venire summoned for his trial delivered to him or his counsel at least one (1) entire day before said trial.

Section 99-17-3 provides:

In capital cases the defendant and the state shall each be allowed twelve peremptory challenges. In cases not capital the accused and the state each shall be allowed six peremptory challenges; but all peremptory challenges by the state shall be made before the juror is presented to the prisoner. In all cases the accused shall have presented to him a full panel before being called upon to make his peremptory challenges.

After Furman, this Court decided the cases of Ex Parte Dennis, 334 So.2d 369 (Miss.1976), and Hudson v. McAdory, 268 So.2d 916 (Miss.1972). A study of those opinions is important while determining the legislative intent after Furman. Ex Parte Dennis, supra, was considered and the opinion written after the legislature had enacted statutes required by Furman. The principal statute with which we are concerned was enacted in 1974 and appears as Code section 1-3-4. It provides:

The terms “capital case,” “capital cases,” “capital offense,” “capital offenses,” and “capital crime” when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term “capital murder” when used in any statute shall denote criminal cases, offenses and crimes punishable by death, or imprisonment for life in the state penitentiary.

We now refer to certain statements made by the Court in Hudson and Dennis, supra. We have to bear in mind that both of those cases involved whether or not the accused was entitled to bail and primarily were concerned with Section 29 of the Mississippi Constitution of 1890. The Court, however, thought it best to touch on the “procedural safeguards” that should be afforded the accused in addition to the bail issue. In Hudson, we said:

If the contention of appellant were followed to a logical conclusion the number of peremptory challenges prescribed by Section 2520 Mississippi Code 1942 Annotated (1956) would be reduced from twelve to six, thus taking away from an accused a valuable right.
Section 1795 Mississippi Code 1942 Annotated (1956) provides that any person charged with a capital crime or with the crime of manslaughter is entitled to a special venire. Section 2505 Mississippi Code 1942 Annotated (1956) provides that persons indicted for capital crime shall have the right before the completion and drawing of a special venire to have a copy of the indictment and the list of the special venire summoned for his trial delivered to him or his counsel at least one entire day before the trial.
If we were to hold that capital crimes or capital cases referred to those only where the death penalty can now be inflicted, consistency would require us to deprive a defendant of the right of a special venire in cases formerly capital, but grant one if the charge was the lesser offense of manslaughter.
A logical extension of the argument of appellant would have the effect of deleting the special oath for jurors in “capital cases” as provided by Section 2507 Mississippi Code 1942 Annotated (1956); would change the requirement of Section 2514 Mississippi Code 1942 Annotated (1956) providing that a motion for severance of persons jointly indicted for “capital cases” must be made before ordering a special venire; would repeal by judicial decision Section 2512 Mississippi Code 1942 Annotated (1956) which provides that a motion for change of venue in “capital cases” must be made before drawing a special venire; would limit the appointment of counsel for indigent persons charged with a “capital case” to one, instead of two as permitted by Section 2505-02 Mississippi Code 1942 Annotated (1956); would reduce the fees that could be paid attorneys representing indigent defendants in a “capital case” from $1,000 to $500.
The Constitution of Mississippi neither defines the term “capital offenses” appearing in Section 29 thereof, nor prescribes the punishment for these or any other crimes; therefore, the designation of “capital offenses” was left to the Legislature. The Legislature has done this by prescribing the death penalty as punishment for certain crimes. This designation by the Legislature is as effective today as before Furman. The classification of crimes as capital is a legislative rather than a judicial function.

In Ex Parte Dennis, supra, the Court said:

The first question to be decided is whether the legislature intended by Section 1-3-4 to retain armed robbery within the classification of capital crimes for which bail can be denied. In this determination consideration must be given to the simultaneous withdrawal of the death penalty from the robbery statute, other concurrent enactments, and the rule expressed in Hudson, supra.
The terms within quotation marks of Section 1-3 — 4 are used within the following statutes of the Code (perhaps others) pertaining to criminal trials:
13-5-73, Oath of jurors and bailiffs in capital cases;
13-5-77, Special venire facias to issue in certain criminal cases;
97-1-7, Attempt to commit offenses— punishment;
99-15-17, Compensation of counsel— amount;
99-15-27, Copy of indictment and special venire served to be given in capital cases; 99-15-43, Change of venue — capital cases;
99-15-47, Joint indictments — severance in felonies; and
99-17-3, Peremptory challenges — number allowed.
The protection of criminal procedures was the foundation reason of the Hudson decision. The procedural status quo was maintained though the death penalty could not be inflicted because of the interposition of federal power through the United States Supreme Court. However, the historic definition of a capital case as one permitting the death penalty was retained. We held that capital offenses when used in the statutes meant a class of cases wherein the legislature had authorized the death penalty, stating:
‘. . . The Legislature has done this by prescribing the death penalty as punishment for certain crimes .
[A] capital case is any case where the permissible punishment prescribed by the Legislature is death . . ’ At the time of Furman, Hudson and Blackwell [v. Sessums, Miss., 284 So.2d 38], the statute for armed robbery included the death penalty. This was removed in Chapter 576, Laws of 1974, Regular Session, specifically Mississippi Code Annotated Section 97-3-79 (Supp.1975). When the Legislature enacted Sections 1-3-4 and 97-3-79 in 1974 the construction we had often given “capital offenses” was within its knowledge. By passing legislation establishing the death penalty in some crimes and removing it from others, the previous definition we had given a “capital offense” or similar terms was implicitly adopted.
We are of the opinion the legislative intent was to draw a clear distinction between the present life imprisonment statute (previously permissive of either life imprisonment or death) and the death penalty statutes permitting only that punishment. We think the legislative purpose of the distinction was to eliminate the confusion that had arisen from “capital offenses” and similar terms existing in the statutes at the time of Fur-man and presently remaining therein. Its intention was to preserve the criminal procedures formerly associated with the trial of serious criminal offenses where the permitted punishment was either life imprisonment or death, but which presently permit as the maximum only life imprisonment. Armed robbery is in this last category. The seriousness of the crime, though its punishment was mitigated, nevertheless required the special standards to be maintained. We conclude the legislature in its wisdom did not intend by Section 1-3-4 to retain armed robbery within the class of capital offenses for which bail could be denied when it removed the death penalty from it.

It appears, therefore, that we already have decided the principal issues raised in this appeal. In order, however, to be sure that the bench and bar have definite yardsticks to follow, we now state the following: All statutory procedural safeguards that are now a part of the laws enacted by the legislature involving so-called “capital” crimes or offenses or “crimes of a serious nature” still are in full force and effect even though the death penalty has been removed from some of those offenses, included but not limited to armed robbery, forcible rape, and kidnapping. We hold that the legislature by enacting Section 1-3-4 of the Mississippi Code Annotated (1977 Supp.) intended to retain these safeguards in all cases where the maximum sentence is life imprisonment.

Therefore, it follows that in this case the lower court should have granted appellant’s request for a special venire and should have granted his request for twelve peremptory challenges. With the above findings, it is not necessary for us to consider appellant’s assignment of error No. 3.

REVERSED AND REMANDED.

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


author: WALKER, Justice,

text:
    FORTUNE FURNITURE MANUFACTURING, INC. v. PATE’S ELECTRONIC COMPANY.
    No. 50185.
    Supreme Court of Mississippi.
    March 29, 1978.

      John D. Sibley, Okolona, for appellant.
    Thomas J. Gardner, III, Tupelo, for ap-pellee.
    Before ROBERTSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a judgment in the amount of $17,250 entered upon the granting of a peremptory instruction for the plaintiff (Appellee) in the Circuit Court of Chickasaw County, Mississippi. From that judgment, appellant appeals.

The evidence showed .that on February 18, 1976, M. L. Pate, the owner of Pate’s Electronic Company, made an offer to Sidney Whitlock, President of Fortune Furniture, for the installation of a complete video surveillance system to cost $17,000. This proposal, which was marked “Good for 30 days,” was accepted by Mr. Whitlock the day it was offered.

The testimony was conflicting with respect to the date work was begun on the installation of the system and the date it was completed. M. L. Pate and his son, Richard, both stated that within a couple of weeks after the offer was accepted, they began pulling cable in the Fortune plant and the system was completely in place by May 10, 1976. Sidney Whitlock and Bill Martin, the Fortune plant manager, testified that the Pates did not begin pulling the cable until approximately April 1,1976, and did not complete the installation until sometime in July, 1976. In addition, Sidney Whitlock testified and it was pled that when the contract was signed, M. L. Pate stated that the system would be installed in thirty days. The defense contended that this was the meaning of the “Our proposal # 1098 for 30 days” clause.

Richard Pate testified that sometime in May 1976, after the mounting brackets were installed, but before the cameras were in place, Sidney Whitlock told him he (Whitlock) could not afford the system. To the contrary, Whitlock testified that he told Richard Pate that the system had not been installed in thirty days as promised, and that he (Whitlock) no longer wanted it. According to Whitlock, he spoke to M. L. Pate a couple of days later and Pate told him that if he (Whitlock) “. . . would go ahead and let him install the system, if I (Whitlock) wasn’t satisfied with it, that it was his (Pate’s) baby.” M. L. Pate denied this and stated that while he might install one camera for trial purposes, he would never install a twenty camera system with that understanding.

In any event, the cameras were installed. However, it was established by the testimony of Richard Pate, Sidney Whitlock, and Bill Martin that three of the cameras did not work properly when the system was turned on. Richard Pate stated that replacements for those cameras were ordered and received- but were never installed because of Whitlock’s refusal to pay for the system. According to Richard Pate, Whit-lock informed them that he would not pay for the system five days after they presented him with the bill. Richard Pate testified that the manufacturer refused to take back the cameras and so the system was still in place in the Fortune plant at the time of the trial.

The trial court granted a peremptory instruction on the grounds that the system was substantially completed within a reasonable time. The appellant contests the granting of that instruction on appeal here and assigns it as the sole point of error.

This appeal is well taken. The general rule is that what is a reasonable time for performance when there is no time specified in the contract is a question of law for the court. Echols v. New Orleans, Jackson & Great North. R. R., 52 Miss. 610 (1876). However, in this case the appellant pled and Sidney Whitlock, its president, testified that at the time he signed Pate’s proposal, M. L. Pate told him that the system would be installed within thirty days. The rule is that prior and contemporaneous negotiations are merged only into the writings that are adopted by the parties as the final and complete expression of their agreement. See Swinny v. Cities Service Oil Co., 197 So.2d 795 (Miss.1967); Tallahatchie Compress & Storage Co. v. Hartshorn, 125 Miss. 662, 88 So. 278 (1921); Pettett v. Cooper, 62 Ohio App. 377, 24 N.E.2d 299 (1939). Further, whether a written contract was intended to be the final and complete expression of the agreement must be determined from the circumstances of the case. Putnam v. Dickinson, 142 N.W.2d 111 (N.D.1966); Spitz v. Brickhouse, 3 Ill.App.2d 536, 123 N.E.2d 117 (1954).

Since the question whether the written contract was the final and complete expression of the agreement between the parties can be decided only on the basis of the evidence and since the evidence in this case was conflicting, it is clear that a jury issue was presented as to whether Pate had contracted to complete installation of the system within thirty days. The court erred in taking this from the jury.

A second jury issue was presented over the question whether Pate’s performance was substantial. In Standard Mill Work & Supply Co. v. Mississippi Steel & Iron Co., 205 Miss. 96, 38 So.2d 448 (1949), we stated:

Substantial performance is not literal, full or exact performance in every slight or unimportant detail, but performance of all important particulars. (205 Miss, at 110, 38 So.2d at 450).

In light of the fact that three cameras did not work properly when the system was turned on, the issue of whether the contract had been performed in all of its important particulars was for the jury. See Hardin v. Beaman, 49 So.2d 732 (Miss.1951).

For the foregoing reasons, this case must be reversed and remanded for a new trial. On retrial, the parties should consider the applicability of the Uniform Commercial Code to this case. See Bonebrake v. Cox, 499 F.2d 951 (8th Cir. 1974). The parties should pay particular attention to section 2-601 (Mississippi Code Annotated section 75-2-601 (1972)), which deals with the buyer’s right to reject nonconforming goods; section 2-602(1) (Mississippi Code Annotated section 75-2-602(1) (1972)), which deals with the time for rejection; section 2-508 (Mississippi Code Annotated section 72-2-508 (1972)), which deals with the seller’s right to cure; section 2-610 (Mississippi Code Annotated section 75-2-610 (1972)), which deals with anticipatory repudiation, and the various sections on damages of the article on Sales.

In addition, on retrial no amount should be allowed as damages for the cost of hiring an independent electrical contractor unless it is shown that Bill Martin, who told M. L. Pate to hire the electrician, had either real or apparent authority so to do. See Metzger v. Southern Bank, 98 Miss. 108, 54 So. 241 (1910).

REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION.

PATTERSON, C. J., SMITH, P. J., ROBERTSON, P. J., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.