text:
    BRUCE BUILDERS, INC., Appellant, v. Richard GOODWIN et al., Appellees.
    No. 73-1142.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
    Steven Mishan of Law Offices of Steven Mishan, Miami, for appellant.
    J. Kaylor Young, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

Bruce Builders, Inc., defendant-counter-plaintiff, seeks review of a final judgment awarding it $1.00 as damages.

The appellees agreed to purchase eight lots and contemplated improvements from appellant for a total price of $173,800. Pursuant to the provisions of the contract appellees deposited the sum of $7,200 in escrow toward the purchase price of the lots and contemplated improvements. Among other things, the contract provided that upon default in making further deposits toward the purchase price as required or in failing to close and pay the balance of the purchase price due, the purchaser would forfeit all rights under the contract, and the escrow balance would be delivered to the seller as liquidated damages. No closing ever took place, each party claiming the other breached the contract. Appellees sued appellant and the escrow agents to recover the aforesaid deposit, alleging that appellant had breached the contract. Appellant filed a counterclaim for damages, alleging that appellees had breached the contract.

A non jury trial resulted in a final judgment wherein the court found “the equities in this cause are with Bruce Builders, Inc., a Florida corporation, the Defendant and Counterclaimant, and against Richard Goodwin and Herbert Kontny, the Plaintiffs and Counter-Defendants.” The judgment then (1) dismissed the complaint with prejudice, (2) awarded the appellant the sum of $1.00 as damages on its counterclaim, (3) awarded the appellant attorney’s fees to be subsequently determined by the court, and (4) directed the escrow agents to disburse to the appellees the $7,200 deposit, less the $1.00 damages and the attorney’s fees to be determined by court.

Appellant has assigned as error the determination of only $1.00 as damages and the award of the deposit to the appellees. The appellees filed no cross assignments of error, thus the dismissal of the complaint and the award of attorney’s fees are not in issue on appeal.

It is apparent from the final judgment that the court found the appel-lees had breached the contract. Appellees’ breach of their agreement rendered them purchasers in default. As a general rule a purchaser in default (absent exceptions which are not present in this case) cannot recover from the seller money paid in part performance of an executory contract. Beatty v. Flannery, Fla.1950, 49 So.2d 81; Ruckelshaus v. Broward County School Board, 494 F.2d 1164 (5th Cir.1974). See also O’Neill v. Broadview, Inc., Fla.App. 1959, 112 So.2d 280. Therefore, the award of the deposit to appellees was error even had the contract not provided for its retention by appellant as liquidated damages. Beatty v. Flannery, supra.

The foregoing conclusion determines the rights of the parties in this case. However, since the parties and the trial court devoted considerable time and energy to the question whether the liquidated damage provision in the contract is truly one for liquidated damages or is a penalty, it seems appropriate for us to speak to that issue. We think it should be determined by the rule laid down in Hutchison v. Tompkins, Fla. 1972, 259 So.2d 129. Therein the Supreme Court reviewed the conflict between the landmark case of Pembroke v. Caudill, 160 Fla. 948, 37 So.2d 538, and the later case of Hyman v. Cohen, Fla.1954, 73 So.2d 393, and held that whether a clause in a contract is one for liquidated damages or a penalty depends upon whether or not the damages flowing from a breach are readily ascertainable at the time the contract is executed. If the damages are ascertainable on the date of the contract, the clause is a penalty and unenforceable; if they are not so ascertainable, the clause is truly one for liquidated damages and enforceable; however, if subsequent circumstances demonstrate it would be unconscionable to allow the seller to retain the sum in question as liquidated damages, equity may relieve against the forfeiture.

It seems clear that the damages flowing from a breach of the contract in question were not readily ascertainable at the time the contract was executed, therefore the provision for liquidated damages should stand and the appellant is entitled to keep the deposit unless the subsequent circumstances render it unconscionable for appellant to do so.

Turning now to precedent to see what traditionally has shocked “the court’s conscience” we find that in Beatty v. Flannery, supra, retention of a $3,000 deposit on a $30,000 contract created no pangs. And in O’Neill v. Broadview, Inc., supra, forfeiture of a $1500 deposit on a $10,440 contract could be tolerated. However, in Hook v. Bomar, 320 F.2d 536 (5th Cir. 1968), loss of a $30,000 deposit on a $95,000 contract was found unconscionable. In the case at bar the contract was for $173,800, and the deposit was only slightly more than 4% of that sum. Thus, based upon precedent the amount is not shocking to “the court’s conscience.”

There is some evidence in the record pertaining to appellant’s actual damages, though it is by no means any model of clarity or certainty. The most that can be said for. the evidence regarded most favorably to the appellees is that it indicates appellant made a profit of approximately $1250 on six of the lots in question and sustained a loss of $4913 on two lots for a net profit of approximately $2500. Even under these circumstances appellant’s retention of the liquidated damages provided in the contract is not shocking.

Accordingly, the judgment is reversed and the cause is remanded with directions that the trial court order disbursal of the $7200 deposit to the appellant. However, in pursuit of consistency, since a seller may not keep a breaching buyer’s deposit as liquidated damages and also recover actual damages (Miller Yacht Sales, Inc., v. Scott, Fla.App.1975, 311 So.2d 762), the trial court shall delete from the final judgment for appellant the $1.00 award.

Reversed and remanded with directions.

WALDEN, C. J., and NEWELL, EMERY L, Associate Judge, concur.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    Lurea CLARK, Appellant, v. STATE of Florida, Appellee.
    No. X-208.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1975.

      Richard W. Ervin, III, Public Defender; and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

This is an appeal from judgment and sentence of appellant for second degree murder predicated upon a guilty plea. After having previously pled not guilty to an indictment charging first' degree murder, appellant appeared before the court with her attorney and withdrew her previously entered plea of not guilty and pled guilty to the lesser included offense of second degree murder. The guilty plea was entered with the understanding that there would be a presentence investigation and that she would not be sentenced to more than 20 years. The court questioned her and determined that she fully understood the plea bargain and the maximum sentence she would receive under it. The court further determined from its questions that she had not been threatened, coerced, intimidated or in any way forced to enter her plea and that she was pleading voluntarily to the charge of second degree murder. She advised that she was satisfied with the advice given to her and the services which were performed by her attorney; that she did, in fact, commit the homicide. The assistant state attorney then questioned appellant to establish a factual basis for the plea and she admitted that she did shoot Paul Walter Marshal with a pistol on the first day of June, 1974; that she did it unlawfully and from a premeditated design; that the pistol was in her possession in her purse and belonged to her mother.

Although the appellant had pled guilty, the trial judge, perhaps inadvertently, accepted her “plea of nolo contendere.” Subsequently, after presentence investigation and report, she was adjudged guilty and sentenced to 20 years in the state prison.

Appellant contends that in accepting her guilty plea the trial court denied her due process in that it failed to follow the requirements set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Although the opinion of the United States Supreme Court in Boykin listed three constitutional rights a defendant waives when he pleads guilty, it did not specify that the trial judge before accepting such a plea must enumerate such rights and secure an affirmative waiver from the defendant as to each of them. The court in Boykin stated:

“. . . So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.
Trial strategy may of course make a plea of guilty seem the desirable course. But the record is wholly silent on that point and throws no light on it.”
***** *
“It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.”

The court then enumerated three constitutional rights that are waived when a plea of guilty is entered [(1) the privilege against compulsory self-incrimination (2) the right to trial by jury and (3) the right to confront one’s accusers]. The court then said:

“We cannot presume a waiver of these three important federal rights from a silent record.” (Emphasis supplied)

The record in the case sub judice is at wide variance from the silent record in Boykin. Here it was established that the guilty plea was voluntary; that appellant fully understood the plea bargain that she had agreed to; that she was satisfied with the representation of her attorney and that there was a factual basis for the plea. Unlike Boykin, this is not a silent record and we can presume from this record that there was an adequate waiver by appellant of the previously enumerated constitutional rights. See Kelly v. State, Fla.App. (1st), 254 So.2d 22 (1971); Hall v. State, Fla. App. (4th), 273 So.2d 90 (1973); Dill v. State, Fla.App. (1st), 248 So.2d 502 (1971); People v. Ferguson, 383 Mich. 645, 178 N.W.2d 490; and Ford v. State, Fla.App. (1st), 317 So.2d 473. Opinion filed August 12, 1975.

Affirmed.

RAWLS, Acting C. J., and MILLS, J., concur.


author: PER CURIAM.

text:
    STATE of Florida ex rel. ISLAMORADA ASSOCIATES, LTD., a Florida limited partnership, Relator, v. Honorable M. Ignatius LESTER, Judge of the Circuit Court of the Sixteenth Judicial Circuit of Monroe County, Florida, Respondent.
    No. 75-377.
    District Court of Appeal of Florida, Third District.
    April 23, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    STATE of Florida ex rel. John J. BURGESS, Relator, v. J. Cail LEE, as Judge of the Circuit Court, Broward County, Florida, Respondent.
    No. 75-1007.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1975.
    Rehearing Denied June 26, 1975.
   Prohibition denied.


text:
    Donald DEXTER, Petitioner, v. Claude DORSY, Individually and as trustee, Respondent.
    No. 75-953.
    District Court of Appeal of Florida, Third District.
    June 23, 1975.
    Rehearing Denied Sept. 8, 1975.
   PER CURIAM.

Certiorari denied.


text:
    George BERROJO, Petitioner, v. The STATE of Florida, Respondent.
    No. 75-462.
    District Court of Appeal of Florida, Third District.
    July 2, 1975.
    Rehearing Denied Sept. 9, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Paul GLAFENHEIN, Appellant, v. Michael J. MALONEY, Trustee, Appellee.
    Nos. 74-1505, 74-1506.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Rehearing Denied Sept. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Frederick RODNEY and Alton E. Hopwood, Appellees.
    No. 75-322.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Rehearing Denied Sept. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Philip B. STERN, Appellant, v. Thalia STERN, Appellee.
    No. 75-253.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    TAINES BUILDING COMPANY, a Florida Corporation, Petitioner, v. G & G CONSULTANTS, INC., a Florida Corporation, et al., Respondents.
    No. 75-1148.
    District Court of Appeal of Florida, Third District.
    July 24, 1975.
    Rehearing Denied Sept. 9, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Fay ANSBAUGH et al., Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF FORT LAUDERDALE, Appelle.
    No. 75-273.
    District Court of Appeal of Florida, Fourth District.
    July 24, 1975.
    Rehearing Denied Sept. 19, 1975.
   Appeal dismissed.


text:
    McNAB ENTERPRISES, INC., Petitioner, v. Claude DORSY, Individually and as trustee, Respondent.
    No. 75-1158.
    District Court of Appeal of Florida, Third District.
    July 25, 1975.
    Rehearing Denied Sept. 9, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Michael WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-505.
    District Court of Appeal of Florida, Third District.
    July 25, 1975.
    Rehearing Denied Sept. 9, 1975.
   PER CURIAM.

Appeal quashed.


text:
    The TOWN OF SURFSIDE, a Municipal Corporation, Appellant, v. COUNTY LINE LAND COMPANY, a Florida Corporation, Appellee.
    No. 75-875.
    District Court of Appeal of Florida, Third District.
    July 30, 1975.
    Rehearing Denied Sept. 9, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Joseph Robert EVANS and Phillip Dean Evans, Appellants, v. STATE of Florida, Appellee.
    No. 74-860.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.
    Rehearing Denied Sept. 18, 1975.
   PER CURIAM.

Affirmed.


text:
    In re ESTATE of Blanche T. CLARK, Deceased.
    No. 75-1236.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 1975.
    Rehearing Denied Sept. 18, 1975.
   Appeal from Circuit Court, Palm Beach County; Paul T. Douglas, Judge.

Appeal dismissed.


text:
    Gerald Adam THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1365.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 1975.
    Rehearing Denied Sept. 18, 1975.
   PER CURIAM.

Affirmed.


text:
    ELLER & COMPANY, INC., a Florida Corporation, Appellant, v. KLOSTERS REDERI A/S, a Norwegian Corporation, Appellee.
    No. 75-487.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Gerald HAUSMAN, Appellant, v. Renee HAUSMAN, Appellee.
    Nos. 75-1115, 75-1116.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 1975.
   PER CURIAM.

Appeals dismissed.


text:
    William Frank KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 75-665.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
    Rehearing Denied Sept. 18, 1975.
   PER CURIAM.

Affirmed.


text:
    John P. COWART, Petitioner, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent.
    No. 75-698.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
   Upon consideration of the Petition for Writ of Habeas Corpus filed by the attorney for petitioner, the Response thereto and the decision of the Florida Supreme Court in Lowe v. Stack, Opinion filed December 18, 1974, Case No. 46,015, Opinion adhered to July 30, 1975, on rehearing, it is

ORDERED that this Petition for Writ of Habeas Corpus be and the same is hereby granted to the extent that the conviction of the lower court is reversed and the cause is remanded to the trial court without prejudice to the State seeking a grand jury indictment or other proceedings consistent with Lowe v. Stack, supra.


text:
    Charles LeCLAIR, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1226.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
   Habeas corpus denied.


text:
    Larry Eugene NICHOLAS, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1232.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
   Habeas corpus denied.


text:
    Roy E. STRICKLAND, Jr. and Harriette W. Strickland, his wife, Appellants, v. DIXIE INDUSTRIAL SALES, INC., et al., Appellees.
    No. 74-1040.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
    Rehearing Denied Sept. 23, 1975.
   Appeal quashed.


text:
    John C. BORDEMAN et al., Petitioners, v. Gerald A. LEWIS, as Comptroller of the State of Florida and State Commissioner of Banking, Respondent.
    No. 75-253.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1975.
   Certiorari dismissed.


text:
    The GILMER-JOHNSON ORTHOPEDIC ASSOCIATION, P.A., Appellant, v. Joseph V. URICCHIO, Jr., M.D., Appellee.
    No. 75-1160.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1975.
   Appeal from Circuit Court, Orange County; Parker Lee McDonald, Judge.

Appeal dismissed.


text:
    Frank GONZALES, Appellant, v. STATE of Florida, Appellee.
    No. 74-1691.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1975.
   Appeal from Circuit Court, Martin County; C. Pfeiffer Trowbidge, Judge.

Appeal dismissed.


text:
    Ellis DIXON, Appellant, v. DIVISION OF CORRECTION DCRP CAMP # 31, Appellee.
    No. 75-1471.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1975.
   Habeas corpus denied.


text:
    Peter A. LEVIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1077.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1975.
   Appeal from .Circuit Court, Palm Beach County; Russell McIntosh, Judge.

Appeal dismissed.


text:
    Renee D. LEIMKUELLER, wife, Appellant, v. Fred E. LEIMKUELLER, husband, Appellee.
    No. 75-1217.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1975.
   Appeal from Circuit Court, Broward County; Arthur Franza, Judge.

Appeal dismissed.


text:
    Willie C. PAGE, Appellant, v. STATE of Florida, Appellee.
    No. 75-978.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1975.
   Appeal from Circuit Court, Orange County; B. C. Muszynski, Judge.

Appeal dismissed.


text:
    Delores SMITH and William G. Smith, Appellants, v. STATE of Florida, Appellee.
    No. 74-1780.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1975.
   Appeal from Circuit Court, Martin County; C. Pfeiffer Trowbridge, Judge.

Appeal dismissed.


text:
    Billy Glenn ISLEY, Petitioner, v. Malcolm E. BEARD, as Sheriff of Hillsborough County, Florida, Respondent.
    No. 75-1154.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 1975.
   Habeas corpus denied.


text:
    Clarence McGILL, Appellant, v. STATE of Florida, Appellee.
    No. 74-1237.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 1975.
    Rehearing Denied Sept. 18, 1975.
   PER CURIAM.

Affirmed.


text:
    Kenneth F. HIPKE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1422.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Lynda Shuler HORNE and W. O. Shuler, Jr., Appellants, v. LONG BEACH RESORT, INC., a Florida Corporation, et al., Appellees.
    No. X-253.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Mary Nell BATTLES, Appellant, v. STATE of Florida, Appellee.
    No. 75-361.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Philip PFEILMAIR, Appellant, v. Frank G. WORRALL and Carolyn M. Worrall, his wife, Appellees.
    No. 75-1432.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1975.
   Appeal from Circuit Court, Palm Beach County; Hugh MacMillan, Judge.

Appeal dismissed.


text:
    Philip M. KIDWELL, Appellant, v. W. C. LEE et al., Appellees.
    No. 74-582.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1975.
   Appeal from Circuit Court, Orange County; Richard B. Keating, Judge.

Appeal dismissed.


text:
    Earl Jerome JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1203.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1975.
   Mandamus denied.


text:
    Albert Chavey MONTANTEZ, Appellant, v. STATE of Florida, Appellee.
    No. 75-572.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Ronald HINES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-981.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Eugene GLUCK, Appellant, v. CITY NATIONAL BANK, a National Banking Association, Appellee.
    No. 75-1188.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    BLUE CROSS OF FLORIDA, INC., and Blue Shield of Florida, Inc., Petitioners, v. Maria MENENDEZ, f/u/b/o the Aetna Casualty and Surety Co., Respondent.
    No. 75-799.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Carmen CANES, Petitioner, v. STATE of Florida, DEPT. OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, Respondent.
    No. 75-1056.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    EL CONQUISTADOR CONDOMINIUM, INC., a Florida Corporation, et al., Appellants, v. Ralph BARTEL and Mollie H. Bartel et al., Appellees.
    No. 75-750.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
   PER CURIAM.

Appeal dismissed.


author: PER. CURIAM.

text:
    Pearl F. HORVATT, Petitioner, v. STATE of Florida, DEPT. OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, Respondent.
    No. 75-806.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
   PER. CURIAM.

Certiorari dismissed.


text:
    MEDICAL HEALTH INDUSTRIES OF FLORIDA, Appellant, v. CENTURY CONVALESCENT CENTERS, INC., a Delaware Corporation, Appellee.
    No. 75-850.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Victor G. OSTLING, Petitioner, v. STATE of Florida, DEPT. OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, Respondent.
    No. 75-1073.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    STATE of Florida ex rel. Heriberto GIL, Petitioner, v. Honorable James S. RAINWATER, Judge of the County Court, Division in and for Dade County (Traffic cases), Respondent.
    No. 75-854.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Henry P. THOMAS, Petitioner, v. STATE of Florida, DEPT. OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, Respondent.
    No. 75-758.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Lillian WILISCH, Appellant, v. Theodore WILISCH, Appellee.
    Nos. 75-965, 75-966, 75-967 and 75-968.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
   PER CURIAM.

Appeals dismissed.


text:
    Michael CANNINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 75-557.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Donald K. CURRENS, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1454, 74-1455.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    James H. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1375.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Samuel H. GERBER et al., Appellants, v. James J. SPENCER, a minor, etc., et al., Appellees.
    No. 75-844.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    John M. HADDON, Appellant, v. STATE of Florida, Appellee.
    No. 75-331.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Nathan S. HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 74-1477.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    John Christopher MACOUREK, Appellant, v. STATE of Florida, Appellee.
    No. 74-1143.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Elbert Franklin ROSE, Appellant, v. STATE of Florida, Appellee.
    No. 75-595.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed


text:
    Jack Lester WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 75-44.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    KLEMENTS & ASSOCIATES ARCHITECTS & ENGINEERS, INC., a Florida Corporation, United States Fidelity & Guarantee Company, Appellants, v. OBENOUR ROOFING and Sheet Metal & Supply Company, Inc., Appellees.
    No. 75-945.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    The CONCORD OF FLORIDA, INC., et al., Appellants, v. Morris WEINICK and Ruth Weinick et al., Appellees.
    No. 75-1096.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    MOTHER’S LOUNGE, INC., Appellant, v. STATE of Florida, County of Dade, Appellee.
    No. 75-1297.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 1975.
   PER CURIAM.

Certiorari denied.


text:
    STATE of Florida ex rel. Willie WATKINS, Jr., Relator, v. Louie L. WAINWRIGHT, Director, Division of Corrections for the State of Florida, Respondent.
    No. 75-1214.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 1975.
   PER CURIAM.

Habeas corpus dismissed.


text:
    PREFERRED DEVELOPERS CORPORATION d/b/a Quality Development Corporation of Florida, Appellant, v. Arron Lee DETRE and Alice Leona Detre d/b/a Lee’s Marine and Lee’s Construction, Appellees.
    No. 75-782.
    District Court of Appeal of Florida, Second District.
    Sept. 11, 1975.
   Appeal dismissed.


text:
    James E. FOX, Appellant, v. STATE of Florida, Appellee.
    No. 75-817.
    District Court of Appeal of Florida, Second District.
    Sept. 11, 1975.
   Appeal dismissed.


text:
    Bobby Gene HESTER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1403.
    District Court of Appeal of Florida, Second District.
    Sept. 11, 1975.
   Appeal dismissed.


text:
    James Joseph BRANDT, Appellant, v. STATE of Florida, Appellee.
    No. 75-1038.
    District Court of Appeal of Florida, Second District.
    Sept. 11, 1975.
   Appeal dismissed.


text:
    Tommy Alton SUIT, Appellant, v. STATE of Florida, Appellee.
    No. 75-383.
    District Court of Appeal of Florida, Second District.
    Sept. 11, 1975.
   Appeal dismissed.


text:
    James Bowser McLELLAND, Appellant, v. STATE of Florida, Appellee.
    No. 75-953.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
   Appeal dismissed.


text:
    PUBLIC SERVICE MUTUAL INSURANCE COMPANY, by Robin Harris, Attorney-in-Fact, and Robert Ostrander, Appellants, v. STATE of Florida, Appellee.
    No. 75-304.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1975.
   Appeal dismissed.


text:
    F. James VOWELS, Appellant, v. Jacqueline J. VOWELS, Appellee.
    No. 75-627.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1975.
   Appeal dismissed.


text:
    Mack TEDDER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1035.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1975.
   Appeal dismissed.


text:
    Earle RABB and Mildred Rabb, his wife, Appellants, v. Richard J. SHICK, Appellee.
    No. 75-815.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1975.
   Appeal dismissed.


text:
    Edith S. TRINKLE, Appellant, v. John R. TRINKLE, Jr., Appellee.
    No. 75-1065.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1975.
   Appeal dismissed.


author: BROOM, Justice:

text:
    Lonnie HOLDER v. MISSISSIPPI FUEL COMPANY.
    No. 48135.
    Supreme Court of Mississippi.
    July 21, 1975.
    Rehearing Denied Sept. 22, 1975.
    John M. Sims, Heidelberg, for appellant.
    Marvin Oates, Bay Springs, for appellee.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   BROOM, Justice:

A writ of injunction against Holder was decreed by the Chancery Court of Jasper County, Mississippi, and he appeals. The writ enjoined appellant from interfering with appellee’s entrance upon certain sixteenth section lands to construct a gas pipeline. We reverse.

Whether appellant as holder of a sixteenth section agricultural lease has the right to prevent appellee from constructing a pipeline across his leasehold lands is the chief issue before us.

FACTS

After appellant bought from the Jasper County Board of Supervisors an agricultural sixteenth section lease, appellee desired to construct its pipeline across the land. Appellee sought to negotiate a settlement in advance of appellant’s damages, but negotiations proved to be unsuccessful, and appellee began construction of the pipeline. Following appellant’s erecting no trespassing signs, he was enjoined not to further interfere with appellee’s construction.

At the trial the parties stipulated to the following facts. Appellee did not have any certificate of public convenience and necessity from the Public Service Commission or any other authority from the State of Mississippi. A purported pipeline easement to appellee had been granted by the board of supervisors. In the appellant’s sixteenth section lease contract was a reservation that the board shall have the right “to grant or sell rights-of-way across any of said land for a road, highway, railroad, or any public utility line, provided only that the lessee be paid a reasonable rental for the unexpired term of his lease by the grantee of such right-of-way.” (Emphasis added.)

I.

Mississippi Code Annotated section 77-3-3 (d) (1972) [formerly § 7716-01(D) of the 1942 Code] defines a public utility as including “persons and corporations, or their lessees, trustees and receivers now or hereafter owning or operating in this state equipment or facilities for” the transmission, sale, sale for resale, or distribution of natural, artificial or mixed natural and artificial gas “to the public for compensation . . . . ” (Emphasis added.) According to the record before us, it is apparent that appellee is not a public utility because its transmission of gas through the proposed pipeline in question was not “to the public” but to only one customer, Mississippi Power Company. Obviously, the appellee did not consider itself a public utility because it had not acquired a certificate of public convenience and necessity as required of public utilities by Mississippi Code Annotated section 77-3-11 (1972). That statute requires that such a certificate be issued before any person shall construct, et cet-era, a pipeline for transmitting gas for “intrastate sale to or for the public for compensation . . . .”

We note that the lease in question, pursuant to Mississippi Code Annotated section 29-3-85 (1972), reserved to the board of supervisors the right to grant or sell a right-of-way across said land for “a road, highway, railroad, or any public utility line . .” Since the pipeline which ap-pellee sought to construct is not a public utility line, upon the facts of this case appellant cannot be made to acquiesce in the right-of-way easement which the board of supervisors attempted to execute in favor of appellee. Perusal of the lease clearly shows that the lessor (Board of Supervisors) did not reserve the right (and had no such right by any cited statute) to grant or sell a pipeline easement except to a public utility. Also, appellee failed during the proceedings below to prove that it was a public utility.

When the appellant or his predecessor acquired the lease in question, he became vested (subject to the reservations of the lease) with the right to the undisturbed use of the surface for agricultural purposes for the period of the lease. Under Mississippi Constitution Article 3, section 17 (1890), and United States Constitution Amendments V and XIV, section 1, private property cannot be taken without due compensation first having been paid. As to the surface rights, the sixteenth section leaseholder, except as may be limited by provisions of the lease or by some applicable statute, has the exclusive right to the surface (during the period of the lease) just as though he owned the fee to the land. For anyone else to have the right to use the surface or gain an easement over it without his consent, that person or entity acquiring such a right would have to be within the category of persons or entities having the right of eminent domain. In this case the appellee did not establish that it is a public utility or that it has the right to condemn property rights of another. It follows that the lower court erred in enjoining the appellant from interfering with the construction by appellee of a pipeline across appellant’s lands. The decree of the lower court is reversed and the injunction dissolved.

Reversed and rendered.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, TJ., concur.


author: WALKER, Justice.

text:
    E. E. WOODALL v. Ester Eugene ROSS and Albert Edwards.
    No. 48236.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Rehearing Denied Sept. 15, 1975.

      Felts, Russell & Adams, Edward A. Lueckenbach, Greenville, for appellant.
    Robertshaw, Merideth & Swank, Randolph Noble, Jr., Greenville, John Paul Moore, Starkville, for appellees.
    Before RODGERS, SMITH and WALKER, JJ.
   WALKER, Justice.

This is an appeal and cross-appeal from a judgment of the Circuit Court of Washington County, Mississippi, in favor of ap-pellees for damages sustained as a result of appellant’s cutting all the timber from lands belonging to the appellees.

The jury returned a verdict in favor of appellees in the amount of $1,690 actual damages and $2,000 punitive damages against the appellant Woodall. The trial court reduced the verdict as to actual damages from $1,690 to $1,462.50 (the appellee does not contend that this was error), and set aside the $2,000 verdict representing punitive damages and entered judgment for the appellees in the amount of $1,462.50.

The appellant’s defense in the lower court was that he had acquired title to the 13-acre tract of land in question by adverse possession; and that is the primary question presented on his direct appeal.

The appellees’ cross-appeal is from the court’s action in setting aside the jury’s verdict of $2,000 in punitive damages.

In asserting his claim of adverse possession, appellant relies heavily on Broadus v. Hickman, 210 Miss. 885, 50 So.2d 717 (1951), which involved the two-year statute of limitation, Mississippi Code Annotated section 15-1-17 (1972), and possession under color of a tax patent and what the Court termed as “wild lands.” The Court there said:

This Court has held that the necessary facts to acquire title by adverse possession and preclude recovery by another against such adverse claimant are the same under said Section 717, the two-year tax statute, as under Section 711, Code 1942, the ten year statute. Smith v. Myrick, 201 Miss. 647, 29 So.(2d) 924. Again, it is the rule that less notorious and obvious acts upon the land are essential to vest title in what are known as wild lands than lands suitable to occupancy by residing thereon and putting them to husbandry and farming. McCaughn v. Young, 85 Miss. 277, 37 So. 839, 842. The facts in no two cases are exactly the same. Each must stand upon its own facts; therefore, we deem it unnecessary to detail the various facts involved in the many cases in this State which have involved this question. We think the question solvable by testing the facts of this case by the rule laid down in the McCaughn case, supra. The rule was there stated in these words: “The true doctrine, and the one now generally recognized, is thus stated by Harris, J., in Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137: ‘That neither actual occupation, cultivation, or residence are necessary to constitute actual possession when the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim.’ Worthley v. Burbanks, 146 Ind. 534, 45 N.E. 779; Hubbard v. Kiddo, 87 Ill. 578; 3 Washburn on Real Property, § 1965. ‘It is not necessary that the occupation should be such that a mere stranger passing the land would know that some one was asserting title to a dominion over it. It is not necessary that the land be cleared or fenced, or that any building be put upon it. The possession of land cannot be more than the exercise of Limitations, § 267.” (210 Miss, at 892-893, 50 So.2d at 719-720).

The Court then enumerated the many acts of ownership exercised by Broadus over that property, saying:

Here he took possession; went upon the property; paid taxes for five years; gave a turpentine lease, under which visible acts upon the trees were performed by the lessee; from year to year burned fire guards; had the property surveyed, the corners established and marked, grazed [sic-blazed] some trees along the survey; transplanted many trees; did other acts as above enumerated, [had the land assessed to themselves and put stakes at the corners of the property] and actually paid out to others in taxes and in improving and protecting the property, not counting his own time and labor, $233.64. (210 Miss. at 893, 50 So.2d at 720).

The Court went on to say:

The land could not be profitably cultivated, nor was it good pasture land, or suitable for occupancy as a residence much of it being swampy and low. It was by nature best adapted to the use to which Broadus put it, i. e., reforestation. It is evident, too, that any person of ordinary observation, going upon and inspecting the land as a prospective purchaser, would have noticed signs of ownership being exercised thereover. (210 Miss. at 893, 50 So.2d at 720).

Even if we were to assume arguen-do that the subject lands were “wild lands” as in the Broadus case, which they were not, the few meager acts of ownership relied upon by appellant did not ripen into a legal title. At most, appellant made some repairs to an existing fence which bordered the 13-acre tract on three sides; that his cattle and horses grazed onto the Edwards’ property through the open end which abutted the appellant’s property; and, that he cut some firewood from the property during two winters when he had a wood heater.

It is significant to note that during all of the years that appellant contends he was claiming the 13-acre tract of land, he did not have it surveyed and marked although he had his own land surveyed; and, that he did not attempt to have it assessed in his name or pay the taxes on it as did the Broaduses. Furthermore, he. never told Mr. Edwards, whom he rode back and forth with to work for a long period of time, that he was claiming the property as his own. Also, during the period in which the appellant contends that he was exercising public acts of ownership over the property, the land was assessed to the appellees who continued to pay the taxes. They also paid off a mortgage on this property, which they had put in the Federal Soil Bank Program for ten years. Mrs. Edwards testified that during the period of time in question, she drove past the property many times and never saw anything that caused her to suspect that the appellant was claiming it, until she was notified that the land had been cleared in 1971.

In Berry v. Houston, 195 So.2d 515 (Miss.1967), Justice Smith, speaking for the Court, said:

The acquisition of title by adverse possession, as that phrase is used in real property law, contemplates a special kind of possession. It is the intendment of the law that title to real property belonging to another may never be acquired by mere possession, however long continued, which is surreptitious or secret, or which is not such as will give unmistakable notice of the nature of the occupant’s claim. Such occupancy must not only be adverse, hostile, and exclusive as to others, but it must also be peaceful, uninterrupted, and continuous, under claim of ownership. In addition, the occupancy, under claim of ownership, must be actual, open, notorious, and visible. (195 So.2d at 518).

It is readily apparent from a reading of this record that the appellant’s claim to ownership of the appellees’ 13-acre tract of land is of recent origin and that the jury was eminently correct in rejecting his claim of title by adverse possession.

We have considered the remaining assignments of error on direct appeal and find them to be without merit.

ON CROSS-APPEAL

The appellees' contend on cross-appeal that the trial court erred in ordering a re-mittitur of punitive damages in the amount of $2,000 and ask that this Court reinstate the award.

In Illinois Central Railroad Company v. Ramsay, 157 Miss. 83, 127 So. 725 (1930), this Court said:

To authorize the infliction of punitive damages, the wrongful act complained of must either be intentional, or result from such gross disregard of the rights of the complaining party as amounts to willfulness on the part of the wrongdoer. (157 Miss. at 87, 127 So. at 726).

In Snowden v. Osborne, 269 So.2d 858 (Miss. 1972), this Court held:

Exemplary or punitive damages are those, of course, which are in addition to the actual or compensatory settlement. They are granted in the nature of punishment for the wrongdoing of the defendant and as an example so that others may be deterred from the commission of similar offenses thereby in theory protecting the public. (269 So.2d at 860).

It is a long settled and uniformly adhered to rule in our jurisprudence that the amount of such punitive or exemplary damages is solely within the discretion of the jury, and, no matter what the sum of their finding might be, interference therewith, unless for exceptional causes, is discouraged. The reason being that, as the jury is the sole judge of the amount which ought properly to be assessed in order to inflict adequate punishment, the courts should scrupulously avoid any undue interference with their prerogative. Sandifer Oil Co., Inc. v. Dew, 220 Miss. 609, 71 So.2d 752 (1954); Yazoo & Mississippi Valley Railroad Co. v. Williams, 87 Miss. 344, 39 So. 489 (1905).

The Court has repeatedly stated the rule of law that punitive damages may be recovered where there is malice, fraud, oppression, willful wrong or gross negligence. See Greyhound Corp. v. Townsend, 234 Miss. 839, 108 So.2d 208 (1959); Bradley v. Associates Discount Corp., 230 Miss. 131, 92 So.2d 468 (1957); Bounds v. Watts, 159 Miss. 307, 131 So. 804 (1931); Yazoo & Miss. Valley Railroad Co. v. Mullen, 158 Miss. 774, 131 So. 101 (1930); Illinois Central Railroad Co. v. Ramsay, 157 Miss. 83, 127 So. 725 (1930).

The appellant, cross-appellee, contends that in the absence of having title by adverse possession, which we have held that he did not, that his trespass upon the land of the appellees was in good faith and the result of a bona fide mistake of fact in believing that the lands belonged to him.

In support of his contention that punitive damages should not be allowed, he cites 52 Am.Jur. Trespass section 59, page 881 (1944) [now 75 Am.Jur.2d Trespass section 61, page 54 (1974)] which reads, in part, as follows:

However, where a trespass is the result of a bona fide mistake of fact, the trespasser is not liable for multiple damages, both where the statute does, and where it does not, contain exculpatory provisions. And, although there appears to be an absence of uniformity in the decisions, where a trespass is committed in the erroneous but honest belief that legal authority to commit the act complained of exists, the wrongdoer appears not to be liable for multiple damages.

He also cites 87 C.J.S. Trespass § 112, p. 1069 (1954) which provides, in part, as follows :

Willful acts done, in good faith. Exemplary damages will not usually be allowed where the trespass was under claim of right in good faith, as under claim of title to land, or under mistake as to ownership of personalty taken under process, .

The appellant also contends that he not only acted in good faith but under the advice of counsel and cites 22 Am.Jur.2d Damages section 253, page 347 (1965) which says:

Exemplary damages are not recoverable against a defendant who acts in good faith and under the advice of counsel. But such damages are recoverable against him if he is actually in the wrong, although believing otherwise, and if, under advice of counsel, he acts in an oppressive or cruel manner.

However, there is no merit to appellant’s contention that he acted as he did under advice of counsel. The record simply shows that he contacted an attorney prior to clearing some of his own land and ap-pellees’ 13-acre tract. The record is completely devoid of what information he gave the attorney or what advice the attorney gave him. Also, he made no attempt at the trial to call the attorney as a witness to substantiate his claim that he acted in good faith on advice of counsel. Moreover, it is clear from the record that the appellant had ill feelings toward Mrs. Ross, one of the appellees and cross-appellants, because of a dispute over a property line involving other property on the north side of appellant’s land. The appellant made the statement to two witnesses that he was going to take the 13-acre tract of land because Mrs. Ross had taken some of his land earlier.

We are of the opinion that the trial court erred in setting aside the $2,000 judgment for punitive damages. It is evident from the record that the appellant acted intentionally in a malicious and oppressive manner and not in good faith when he went onto appellees’ property and bulldozed all of the trees therefrom.

Therefore for the reasons given above, this case is affirmed on direct appeal; reversed on cross-appeal; and, the judgment for punitive damages in the amount of $2,000 is reinstated.

Affirmed on direct appeal; reversed on cross-appeal; and judgment for $2,000 punitive damages reinstated.

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


author: INZER, Justice.

text:
    Martha Nell PIKE v. Claude Curtis PIKE, Sr.
    No. 48229.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    Eugene B. Gifford, Jr., Booneville, for appellant.
    Parker, Averill & Winston, Tupelo, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   INZER, Justice.

This is an appeal by Martha Nell Pike from a decree of the Chancery Court of Prentiss County modifying a former decree relative to the custody of children so as to award custody to the appellee, Claude Curtis Pike, Sr. We affirm.

Appellant and appellee were formerly husband and wife and of their union three children were born. They were divorced by a decree of the Chancery Court of Prentiss County, and this decree by consent of the parties awarded the custody of the children to the mother, with the right of the father to custody on each weekend and during the summer months. Thereafter, the father filed this petition alleging material change of circumstances in that the mother had become morally unfit to have the custody of the children.

After an extensive hearing, the chancellor found that there had been a material change in the circumstances since the rendition of the divorce decree in that the mother had become morally unfit to have the custody of the children. The chancellor stated: “The proof is conclusive that she has on several occasions had and entertained men in her house trailer at night and for the entire night.” The chancellor characterized her conduct as promiscuous. It was further found that the proof was overwhelming that people had called at her home at unusual hours and they took intoxicating liquors into and out of the home. He described the events that had occurred in the home since the divorce as “lewd and lascivious.” The mother had knowingly and openly associated with people of this character.

The chancellor was requested to make a finding of fact as to whether there was any evidence that the conduct of the mother had any adverse effect on the children. In answer to this request, the chancellor stated:

Let the record reflect that the Court examined the children in Chambers, out of the presence of the parties, but in the presence of the court reporter and the clerk of the court. It found the children to be articulate, the demeanor to be excellent, the children to be above-average, and the Court could find no indication of any adverse effect upon the children.

The chancellor found from the proof that although in the past the father had been intemperate in his use of alcoholic beverages, since the divorce he had led an exemplary life, remarried and established a home more than suitable for the rearing of children. He further found that the father had affiliated with a church and seemed to be sincere in his devotion to this church.

The court found that it was in the best interest of the children that the decree relative to their custody be modified so as to award the primary custody to the father, with the right of the mother to have custody on the second and fourth weekends of each month with certain restrictions as to her conduct during the time she had custody of the children.

On appeal, the principal contention of the mother is that the chancellor was not authorized under law to deprive her of the custody of her children because he found that her conduct had not adversely affected the welfare of the children. ' In support of this contention, appellant relies on the following statement in Sistrunk v. Sistrunk, 245 So.2d 845 (Miss.1971), wherein we said:

It is a well-settled rule in this state that no court is authorized to materially modify or alter a decree awarding custody of a child to one parent unless there has been a material change of circumstances and then only after a finding based upon substantial evidence that such change of circumstances materially affect the child’s welfare adversely. (Emphasis added) (245 So.2d at 847).

Appellant construes this statement to mean that unless the change of conditions has actually had an adverse effect upon the children, the court is without authority to modify the decree. In other words, it is contended that although the environment in which the children are being kept is such that it is probable that it will adversely affect their welfare, the court is without authority to modify the decree until such time as the condition actually adversely affects the children. With this contention, we cannot agree.

It is well recognized that certain conditions adversely affect the welfare of children. Where, as here, the environment is such that the chancellor found that the conduct of the mother in her place of abode was “lewd and lascivious,” a condition exists that adversely affects the welfare of the children. The chancellor pointed out that the children were of an impressionable age, and although they had not actually been adversely affected by the conduct of their mother, if they were permitted to continue under such circumstances, it would be detrimental to their welfare. It was his opinion that the best interest of the children required that their custody be awarded to the father. A review of the record in this case convinces us that the chancellor was justified both under the law and the evidence in so holding.

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

Affirmed.

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


text:
    In the Interest of Edwin FERGUSON, a minor.
    No. 48,622.
    Supreme Court of Mississippi.
    Aug. 25, 1975.
    George S. Monroe, Newton, for appellant.
    A. F. Summer, Atty. Gen. by Vera Madel Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, INZER and SUGG, TT.
   INZER, Justice.

This is an appeal by Edwin Ferguson, a minor, from an order of the Youth Court of Newton County revoking his probation. We reverse and render.

A petition filed in the Youth Court of Newton County charging Edwin Ferguson, a minor, with malicious mischief resulted in his being adjudicated a delinquent child on November 15, 1972. He was placed on probation and required to report back to the court at each regular term. At the November 1973 term of the court the minor failed to appear and the court on its own motion without notice entered an order revoking the minor’s probation. A warrant was issued for his arrest commanding the sheriff to have the minor before the court at the February 1974 term of the court. The warrant was not executed prior to the February 1974 term of the court, but was executed on May 4, 1974, when the minor was arrested and incarcerated in the county jail. After his arrest the minor, through the aid of his father, procured the service of an attorney to represent him. A petition for a writ of habeas corpus was filed in the Circuit Court of Newton County. After a hearing, the judge of the habeas corpus court entered an order directing the release of the petitioner.

The county attorney then filed a petition in the youth court to revoke the minor’s probation. The attorney representing the minor filed a motion to dismiss the petition to revoke the probation on the ground that the original order adjudicating the minor delinquent was void because neither the minor nor his parent was advised of the right of the minor to be represented by counsel, and further that the minor was not advised of his right to remain silent and that anything he said could be used against him. It was also alleged that the failure to advise him of his right to counsel and of his right to remain silent resulted in his being adjudicated a delinquent solely on his confession in open court.

The court evidently considered the motion as a motion in the nature of a petition for a writ of error coram nobis and conducted a hearing thereon. The testimony established that the minor was never specifically advised that he had the right to counsel. The testimony also established that the minor was never advised that he had a right to remain silent and that anything he said could be used against him. The only evidence heard and considered by the court at the delinquency hearing was the statement of the minor that he had been involved in the incident as charged.

In spite of this showing, the youth court denied the petition to dismiss and sustained the petition to revoke the probation. An order was entered committing the minor to a state training school, and there to be detained until he reached the age of twenty years.

It is well settled that minors in a delinquency proceeding have both a statutory and constitutional right to counsel, and that both the minors and their parents should be advised of such right. Minors also have the constitutional right of confrontation and cross-examination and the privilege against self-incrimination. In the Interest of Triplett, 292 So.2d 171 (Miss.1974), and In the Interest of Gressett, 272 So.2d 921 (Miss.1972).

It is also well settled that in delinquency proceedings, involving a possible loss of freedom, the proof must establish beyond a reasonable doubt each and every element of the offense with which the minor is charged. Furthermore, before a confession of the minor is admissible, the proof must establish that corpus delicti existed, as well as show that the confession was voluntary. In the Interest of Earles, 294 So.2d 171 (Miss.1974).

The record before us clearly established that the minor was never advised of his right to counsel, and that he was not advised of his right to remain silent and anything he said could be used against him. Consequently, his confession was not admissible. Since there was no other evidence to support his adjudication of delinquency, it cannot stand.

For the reasons stated, we hold that the youth court abused its discretion in overruling the minor’s motion to dismiss the petition for revocation of his parole. The order revoking the probation will be reversed and judgment entered here dismissing the petition for revocation.

Reversed and rendered.

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


author: SMITH, Justice.

text:
    James E. BAKER v. STATE of Mississippi.
    No. 48607.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    J. A. White, Durant, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., and Pete Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, SMITH and WALKER, JJ.
   SMITH, Justice.

James E. Baker was convicted of grand larceny in the Circuit Court of Holmes County and sentenced to serve 5 years in the penitentiary. He has appealed here.

His counsel asserts and vigorously argues that several prejudicial errors were committed in the course of Baker’s trial and that the case must be reversed. The record has been carefully examined as to each of the matters assigned and argued and we are forced to conclude that there is no merit in appellant’s contentions with respect to them.

The evidence against Baker, although circumstantial in nature, amply supports the jury’s verdict of guilty. It is contended that the trial court erred in refusing to grant an instruction requested by appellant as to the degree to which the proof must rise to warrant a conviction upon circumstantial evidence. This instruction was copied verbatim from the case of Algheri v. State, 25 Miss. 584 (1853). The requested instruction informed the jury in substance, that in order to justify conviction on circumstantial evidence, such evidence must have excluded every hypothesis except that of guilt. An objection was interposed to the instruction by the State upon the ground that the correct rule required that the word “hypothesis” be modified by the word “reasonable.” The trial court correctly sustained this objection. To justify conviction there must remain no reasonable hypothesis save that of guilt. A 'mere fanciful or farfetched or unreasonable hypothesis of innocence is not sufficient to require acquittal. The trial court’s refusal to grant the instruction in the form presented was not error. Moreover, the principle involved appears correctly stated in Instructions Numbers 1, 2 and 6 of the instructions granted at the request of the State and in Instruction Number 5 granted at the request of the defendant.

No prejudicial error having been committed in the trial of Baker, his conviction and sentence must be affirmed.

Affirmed.

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


text:
    Dora ANDERSON v. Mrs. Burt JAEGER and Sam Laine.
    No. 48244.
    Supreme Court of Mississippi.
    Sept. 9, 1975.

      Watkins & Eager, James A. Becker, Jr., Velia Ann Mayer, Jackson, Hatcher & Westerfield, Cleveland, for appellant.
    Jacobs, Griffith & McIntosh, Cleveland, Wise Carter Child Steen & Caraway, Jackson, for appellees.
    Before RODGERS, SMITH and WALKER, JJ.
   SMITH, Justice.

Dora Anderson was plaintiff and Mrs. Burt Jaeger and Sam Laine were defendants in an action for damages for physical injuries sustained by plaintiff in a motor vehicle collision. The issues were submitted to a jury which returned a verdict for Defendant Jaeger but awarded Plaintiff' Anderson $35,000 against Defendant Laine.

Anderson has appealed from the judgment for Defendant Jaeger. She also has appealed from the judgment awarded her against Defendant Laine. The latter appeal is based upon a contention that the $35,000 award is grossly inadequate and that her motion for a new trial upon the issue of damages alone should have been sustained. Laine has cross-appealed, assigning as error the trial court’s refusal to grant a peremptory instruction requested by him.

In addition to her contention that the trial court should have sustained her motion for a new trial upon the ground that the verdict was grossly inadequate, Anderson assigns as error the overruling of objections to testimony of a Dr. Scarborough, an expert witness offered by Defendant Jaeger, and “in allowing” counsel for Jaeger to “get matters before the jury by suggestive questions,” to the witness contrary to a prior ruling of the court.

The three-vehicle collision, in which Appellant Anderson was injured occurred at a street crossing controlled by a traffic light. At the time Anderson was a “nurse’s aide” and was riding in an ambulance dispatched to pick up an “O. B.” patient. Laine was the driver of the ambulance. Without burdening this opinion with needless detail, the evidence is ample to justify a jury finding that the ambulance was unnecessarily traveling at an excessive and dangerous rate of speed under the circumstances, with siren going and light flashing, and entered the intersection from the West, against the red light signal as Jae-ger, driving her closed passenger automobile, entered from the North on the green signal. There was a collision between the two vehicles which also involved a third vehicle driven by a Mrs. Coury, who is not a party to this litigation.

The verdict of the jury on the issue of Laine’s liability is challenged on cross-appeal by Laine but we find that there was sufficient evidence to support the jury’s finding that the collision was the proximate result of his negligence in the operation of the ambulance.

Appellant Anderson does not assign as error a failure to instruct the jury to find for her peremptorily against Defendant Jaeger on the issue of liability. Her contention as against Jaeger, is directed in the main to the proposition that the trial court erred in overruling objections to testimony given by Dr. Scarborough, offered by Jaeger as an expert physicist to testify as to the scientific characteristics of sound and as to certain experiments he had conducted at the scene, and to alleged “suggestive” questions addressed to him. Shortly after Dr. Scarborough began his testimony, the trial court excused the jury and there was an extended hearing outside the presence of the jury, (covering 30 pages of the record), at the conclusion of which the trial court declined to allow the witness to testify as to the result of his experiments. In so ruling, the trial court was correct if for no other reason than that there was a failure to establish any reasonably substantial similarity between conditions prevailing at the time of the experiments with those which had existed when the collision occurred.’ Out of the presence of the jury the trial court ruled that Dr. Scarborough could testify generally, however, about the relative situations of the several persons who heard or failed to hear the siren of the approaching ambulance. Counsel for Anderson and for Laine, following this ruling by the Court, stated, “We can stipulate as to that.”

When Dr. Scarborough was first placed on the stand, before the jury was excluded, he had stated his qualifications as a physicist and had testified, without objection in the presence of the jury, that he had been employed by Jaeger “to do a study” by going to:.

[T]he intersection of Sunflower and Fourth in Clarksdale, Mississippi, and to measure the relative sound levels at certain points around that intersection due to a high, shrill noise such as a siren coming across the bridge.
Q. All right, did you make such a study ?
A. Yes. I did.

Notwithstanding this testimony, given without objection before the jury, the contention is now made that the questions subsequently addressed to the Witness Scarborough in the presence of the jury after its return were prejudicially suggestive and allowed the jury to know that such a study had been made.' The trial court ruled that the witness might give general testimony as to which of the three persons, Mrs. Jae-ger, Mrs. Coury, and a man who had been sitting in front of a filling station, was in the best relative position to hear outside sounds. It was following this ruling that counsel for Anderson and for Laine each stated: “We can stipulate that.”

The examination then proceeded without objection:

Q. May 29. Were you employed by me to make an investigation for me?
A. Yes.
Q. What was the scope of. the investigation that I asked you to make, Mr. Scarborough ?
A. I was to determine the noise levels at various points around the intersection in question, which would be due to a loud shrill sound such as a siren, coming across the Fourth Street bridge toward the intersection.

The witness then gave the results of certain measurements of distances between locations at and approaching the intersection, again without objection. After testimony about the characteristics of sound waves, the first objection was interposed by counsel for Defendant Laine to this question:

Q. Now, if you will discuss the ability of a person located at that point to hear a siren coming across the bridge?
MR. CARRAWAY: — If the Court please, we object; I thought we were just — that the only thing that would go in would be a broad, general comparison of the three respective positions, and not anything — and it appears we are getting into specifics which as I understand the ruling on yesterday was going to be limited.

Counsel for Anderson made no objection and there was no specific ruling on the objection interposed by Mr. Carraway. The court restated his ruling upon the limits of the examination, and Mr. Carraway said:

It is our understanding, Judge, that doesn’t include any tests that he made or any details of any tests, he did.
COURT: Nor any measurements or anything of that nature.
MR. JACOBS: All right, we understand that the sound measurements are excluded by the Court.

Although no ruling was called for, the court indicated that the question was not properly framed and it was abandoned and not answered. The examination of the witness continued without objection until the witness was asked to “discuss the characteristics of sound as applied to that position,” “that position” having included buildings and other physical characteristics at the intersection. At this point counsel for Defendant Laine interposed, “. . . we have no objection to him comparing the three positions, or places, where the three people were, Mrs. Coury, Willie Somme-ville, and Mrs. Jaeger, in respect to each other, we think that’s the extent to which the witness can testify.” The court agreed and the examination continued. Without objection, the witness testified:

Q. — What obstructions, if any, were there to the hearing of Mrs. Jaeger when she was in that position, Doctor Scarborough ?
A. Well, in that position, first, the liquor store and these other buildings there between her position and the bridge will reflect back the sound which hits them. The sound which reaches that position will be simply that which bends around the corner of the building which bends over the top and which gets reflected from across the street. This is significantly less sound than reaches a person in front of the liquor store.
Q. In other words, in front of the bench—
A. — yes, sir—
Q. — at the bench—
A. — I’m sorry, I said, “Liquor store”, I meant service station.
Q. All right, Now, what about the position where Mrs. Coury’s vehicle came to a stop, which is right there at the southeast intersection, or or southeast portion of that intersection of Fourth Street and Sunflower Avenue. (Pause) What kind of a position would a person there be in to hear sound as compared with Mrs. Jaeger.
A. At the corner of the cemetery, that is the southeast corner of the intersection—
Q. — yes, sir—
A. — the sound at that level would be significantly louder than the sound at the position of Mrs. Jaeger. It’s almost the same but in some cases slightly less than the sound which would be heard from the position in front of the service station.
Q. Now, Doctor Scarborough, does the fact that a person in a vehicle with the windows up, would that have any effect on their ability to hear sound such as a siren ?
A. Yes, the windows up drastically reduces the amount of sound which gets into an automobile.

Dr. Scarborough was asked by what unit the intensity of sound was measured and he responded: “It’s called the decibel.” He was then asked if there was an instrument that measures sound intensity and counsel for Anderson objected. The court sustained the objection. By the next question Dr. Scarborough was asked to state: “How much less would the sound be to a person in a closed automobile with the windows up than it would be to a person standing in the open?” An objection to this question was sustained. The next question was whether the fact that a person was in an automobile with the motor running and the automobile moving would have “any effect” on the ability of a person to hear a sound such as a siren? An objection by counsel for Anderson upon the ground that the question called for speculation was interposed. The court, without ruling on the objection, stated that he would allow the witness to say whether the hearing ability of a person in an automobile with the windows up and motor running would be affected by those two factors. No further objection was made and the witness said that it would.

Dr. Scarborough was asked if he had run “so'me tests with a sound level instrument” at the three locations, referred to in evidence, “using a siren crossing the bridge, - - The question was interrupted by an objection of counsel and the objection was sustained. The final question was hypothetical, was objected to and the objection was sustained.

There was no cross-examination of the witness.

The emphasis is now, however, directed almost entirely to the questions asked rather than to any answers Dr. Scarborough was allowed to give, the contention now being that the questions were prejudicially suggestive and that the trial court should have done something about it. Exactly what he should have done is not clear, as he was not requested to do anything. At no point in the examination of Dr. Scarborough was there any request, either on behalf of Anderson or Laine, that the jury be instructed that questions were not evidence or that they should not speculate as to matters not in evidence. No indication can be gathered from repeated readings of the record of Dr. Scarborough’s examination that the questions addressed to him were considered by plaintiffs counsel unduly suggestive at the time of the trial. There was no motion for a mistrial upon the ground that prejudice had resulted from improper questioning of the witness or from impermissible conduct of counsel with respect to such questions. A motion for a new trial filed by Laine wholly fails even to mention the subject, nor does he assign it as error on his appeal although he adopts the proposition in his brief. Anderson’s motion for a new trial, as it relates to this matter, says only this:

(5) The Court erred in overruling Plaintiff’s objection to the testimony of J. A. Scarborough, the Physics Professor offered on behalf of the Defendant, Mrs. Burt Jaeger.

Nothing was said in the motion as to alleged prejudicial nature of the questions. This proposition first makes its appearance in the assignments of error filed on behalf of Anderson:

The trail (sic) court erred in allowing the attorney for defendant-appellee Jae-ger to persist in his endeavor to get matters before the jury by suggestive questions in view of the prior rulings of the trial court.

When, in the course of a trial before a jury, it is conceived that something has occurred of a prejudicial nature, an objection must be interposed at the time and the trial court thus be given an opportunity to rule. If the sustaining of the objection should then be considered incapable of removing from the minds of the jury the supposed prejudicial effect of the matter objected to, the court then must be requested to instruct the jury that it be disregarded. If, the trial court having responded by so instructing the jury, the objector should still consider that the interests of his client have been irremediably prejudiced and that the actions of the trial court, although favorable, have not been effective in removing from the minds of the jury the prejudicial effect of the objectionable matter, then a motion must be made at the time for a mistrial. It is not permissible to wait until after a verdict has been returned to raise questions such as this after it has turned out that the verdict is unfavorable. It is too late to raise the point for the first time in a motion for a new trial. The trial court may not be put in error where timely request for a ruling has not been made. Timely objections, followed by appropriate and timely motions, are necessary to preserve such points on appeal.

Finally, Appellant Anderson contends that the $35,000 awarded her by the jury is so grossly inadequate that the case should be reversed and a new trial granted on the issue of damages alone.

A jury award of unliquidated damages will not be disturbed by this Court on appeal unless it has been made to appear that the amount is either so grossly excessive or so grossly inadequate as to “shock the enlightened conscience” or evince bias, passion or prejudice on the part of the jury. Dickey v. Parham, 295 So.2d 284 (Miss.1974); Koock v. Fletcher Construction Co., 235 So.2d 462 (Miss.1970); Burlingame v. Southwest Drug Stores of Miss., Inc., 203 So.2d 74 (Miss.1967); Brown & Root, Inc. v. Continental Southern Lines, Inc., 228 Miss. 15, 87 So.2d 257 (1956); Peerless Supply Co. v. Jeter, 218 Miss. 61, 65 So.2d 240 (1953).

Considerable medical testimony by several doctors appears in the record. It is enough to say here that this testimony, as to the nature and extent of Anderson’s injuries, is neither so consistent nor uncon-tradictory as to require this Court to substitute its judgment as to the amount of damages for the findings of the jury. It seems anomalous to say that a jury, which awards a plaintiff $35,000 was motivated in so doing by bias, passion or prejudice against her. Such a case may be conceivable, but this is not such a case. If the award is inadequate, and we are unable to say from the record that it is, it has not been made to appear that it reaches that level of inadequacy which shocks the enlightened conscience or makes it appear that it was the result of bias, passion or prejudice on the part of the jury against the plaintiff.

The examination of the whole record convinces us that the case was well and fairly tried and that the matters assigned as error on both direct and cross-appeals are without merit.

Affirmed on direct and cross-appeals.

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


author: SUGG, Justice: SMITH, Justice

text:
    Mack Author BONNETT v. STATE of Mississippi.
    No. 48638.
    Supreme Court of Mississippi.
    Sept. 9, 1975.

      Clark, Davis & Belk, P. A., Howard Q. Davis, Jr., Indianola, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, INZER and SUGG, JJ.
   SUGG, Justice:

Mack Author Bonnett was convicted of murder and sentenced by the Circuit Court of Sunflower County to life imprisonment. Defendant’s three assignments of error are directed toward the weight of the evidence. Defendant contends that the evidence is not sufficient to establish his guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence.

On Sunday afternoon, July 21, 1974, about 2:00 o’clock p. m. W. W. Denny, an 85 year old man, was robbed and killed. An autopsy revealed that his death was caused by hemorrhaging inside the cranium resulting from blows to the head with a blunt instrument which fractured his skull. The murder weapon was not found.

Denny and the defendant were employed by Mack Thurmond Blackwood, a commercial egg producer, who owns a business referred to by the witnesses as an egg farm located on Highway 49W approximately one mile south of Drew.

Shortly after 2:00 o’clock Blackwood was notified that Denny had been injured and robbed. Upon arriving at his egg farm, he found Denny lying face down in the small room where Denny normally worked. The cash register drawer was open, there was some change on the floor, a bloody one dollar bill on Denny’s leg, a few spots of blood in the cash register and blood on the walls.

Blackwood paid defendant $57.11 on Friday preceding the murder, and testified that approximately $75.00 was missing from the cash register.

Other witnesses for the state established that defendant asked Earl Lee Clark to carry him to the egg farm about 1:00 o’clock p. m. on the day of the murder to pick up some money, and that defendant also asked Evone Phillips for a date and told her he had to go pick up some money. Defendant was seen walking south from Drew toward the egg farm on Highway 49W about one mile north of the egg farm and also about seventy-five yards north of the egg farm. He was dressed in a blue shirt without sleeves and dark pants.

Another witness driving north along Highway 49W passed the egg farm and saw a black man, wearing a blue tee shirt and dark pants, emerge from the door where retail customers entered to buy eggs with an object that looked like a 'Small box in his hand. Defendant was observed about 3:00 o’clock running off the railroad track near Drew where he flagged a white car at an intersection and was seen later in the afternoon about 4:30 in a car with Albert Banks. On the first occasion he was dressed in dark colored pants with a blue shirt, but at 4:30 he had on different clothes.

Another witness stated that defendant came to her home in Drew about 15 minutes before 3:00 and asked for something for a headache. When the witness could not find a pill, defendant left the house and the witness saw him again about 10 minutes after 3:00 at the Junior Food Mart where she worked as a cook. Defendant was with Albert Banks at that time and purchased $4 worth of gasoline for Banks’ car.

Thomas L. Morgan, who had been convicted of arson and manslaughter, testified that he and defendant rented rooms at the same house in Drew. About noon he heard defendant tell a woman named Laverne that he was going to get some money and next saw him about 5 minutes after 3:00 when the defendant returned to the rooming house. Defendant requested him to clean his shoes and gave Morgan the blue, pullover, sleeveless shirt that he was wearing. ' Morgan cleaned defendant’s shoes and washed the shirt. Later, he surrendered the shoes and shirt to an officer.

After the State rested, Bonnett testified that Jordan Duckworth agreed to come by on Sunday and carry him to the egg farm. He awoke about 12:00 noon and when Duckworth did not come by for him he started walking toward the egg farm. As he approached the egg farm, he saw a car, which he believed to be his employer’s, leave the egg farm and proceed to his employer’s house. He saw a red car and a black 1957 Chevrolet leave the egg farm with one of the cars going south toward Ruleville and the other passing him going north toward Drew.

He found Denny, still alive, lying on the floor and, instead of rendering assistance, panicked and ran. When asked why he ran, he stated:

Well, I just got off on parole and I figured they was going to put me in on it. I said, well, they done put me in everything else going on around here in Drew. A woman got cut down there and they tried to put me in that. I got stabbed in the back and they was locking me up for that. I signed the paper. And I didn’t have no choice. If they had caught me, they would point the finger right at me because I’m an inmate.

Defendant ran toward Drew along a nearby railroad, caught a ride in a white car at the edge of town, decided to get out of his muddy clothes and asked Jordan to clean them for him. He went to the home of a friend to get something for a headache and then with Albert Banks in his automobile. He purchased gasoline, bought a six-pack of beer and several cans of milk for a baby. He said that he paid for the articles purchased on Sunday with money that he had received on Friday.

On cross-examination he said he was going to the egg farm to see if he could work, and if he could not work, he was going to borrow money from Duckworth to attend the baseball game. He denied that he told Evone Phillips or Earl Lee Clark that he was going to get some money.

He admitted that he told the sheriff that he did not go to the egg farm at any time on Sunday and that he did not own a pair of shoes or blue shirt like the ones introduced in evidence.

Jordan Duckworth testified that he went by defendant’s rooming house on Saturday morning to pick up the defendant, but defendant was sick. He returned on Sunday and blew his horn, and after defendant did not come out of the house, he went to work. He did not work at the egg farm on Sunday, but worked for Blackwood at another place repairing a house.

The only question in this case is, is the circumstantial evidence sufficient to support the verdict of the jury? In Johnson v. State, 23 So.2d 499 (Miss.1945), we said:

The question must be determined by a jury in each particular case within the principles prescribed by law; within these limitations, the power of circumstances to satisfy the understanding and conscience of the jury beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence, is always the test of the sufficiency of circumstantial evidence.
It was long ago held by this Court in the case of Browning v. State, 33 Miss. 47, citing Cicely v. State, 13 Smedes & M. 202, 211,. and the principle has been uniformly adhered to since that time, that the sufficiency of circumstantial evidence is peculiarly for the determination of the jury, “because it is always solemnly to be weighed and acted upon by their understandings and consciences, and is, from its very nature, the subject of inferences and conclusions in their minds,” and that “a verdict, therefore, found on circumstantial evidence, will always he permitted to stand unless it is opposed by a decided preponderance of the evidence, or is based on no evidence whatever.” (23 So.2d at 500.) (Emphasis supplied.)

See also Burge v. State, 282 So.2d 223 (Miss.1973); Bone v. State, 207 Miss. 868, 43 So.2d 571 (1949); Dickins v. State, 208 Miss. 69, 43 So.2d 366 (1949).

There is evidence to show that defendant said he was going to get money on the afternoon of the murder; defendant admitted that if he could not work at the egg farm on Sunday, he was going to borrow money from Jordan Duckworth; approximately $75 was stolen from the egg farm and later in the day defendant had money and spent money. He changed clothes, had another person to clean up his shoes, gave the shirt he was wearing away, admitted being present at the scene, seeing the body, and fleeing without offering assistance. In our opinion the evidence is sufficient to meet the test announced in Johnson, supra, and to support the verdict of the jury.

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

Affirmed.

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

SMITH, J., dissents.

SMITH, Justice

(dissenting):

I find it impossible to agree that the evidence was sufficient to support the conviction.


author: GILLESPIE, Chief Justice.

text:
    The OXFORD FINANCE COMPANIES, INC., and Home Security Corporation v. Robert N. GRAY et ux.
    No. 48185.
    Supreme Court of Mississippi.
    Sept. 9, 1975.

      Megehee, Brown, Williams & Corlew, Pascagoula, for appellants.
    Ray S. Mikell, Kosciusko, for appellees.
    Before GILLESPIE, SMITH and SUGG, JJ.
   GILLESPIE, Chief Justice.

Robert N. Gray and his wife (hereinafter Gray) sued Oxford Finance Companies, Inc., and Home Security Corporation (Holders) in the Chancery Court of Attala County, Mississippi, for the recovery of interest claimed to be usurious. From a judgment in favor of Gray, Holders appeal.

On December 11, 1963, Gray purchased a house and lot from Allied Mortgage and Development Company, Inc., (Allied) and executed to Allied a promissory note secured by a deed of trust. The note was in the principal amount of $6,292, payable in two installments of $50 each, and 144 monthly installments of $43, the first installment becoming due January 1, 1964, with interest after maturity at the highest lawful rate. The note was first assigned to Union Planters National Bank and thereafter to Holders. The proof showed that interest at six percent was included in the note for the entire period of the loan in accordance with Mississippi Code Annotated section 75-67-39 (1972).

On September 28, 1972, the home was totally consumed by fire. At that time 39 installments or a total of $1,677 was owing under the note. The Florist’ Mutual Insurance Company (Florist) was the insurer of the home against fire loss in the amount of $3,200 which Florist paid to Holders. Holders deducted the 39 payments and paid the balance to Gray. Thereafter, Gray filed this suit, contending that Holders, in retaining the full amount of the 39 payments, collected unearned interest which, when added to the six percent originally included in the note, raised the rate of interest over eight percent. The trial court agreed with this contention and rendered judgment in favor of Gray against Holders for $2,628, which was the entire amount of interest included in the note from its inception. The trial judge held: (1) That Holders were bona fide purchasers without notice of any defects; (2) that the note was not usurious, and (3) that the note as written did not contain usurious interest but that Holders’ retention of the 39 payments, owing at the time of the fire, constituted bad faith.

The threshold question is whether Gray was entitled to a refund of the unearned capitalized interest.

Neither the deed of trust nor the note provided for prepayment. The insurance proceeds received by Holders was in accordance with the provisions of the deed of trust requiring Gray to maintain insurance payable to Holders as their interest might appear upon destruction of the security by fire. Under these circumstances, Holders were not entitled to interest beyond the date they received payment of the insurance proceeds. Where a lender requires that a borrower procure and pay for fire insurance in a sufficient amount to pay off the indebtedness in the event of loss, and such loss occurs prior to the maturity of all of the monthly installments, the parties are deemed to have intended that the unpaid balance should become due and payable immediately out of the proceeds of such insurance. It follows that the Holders of the note were not entitled to demand interest beyond the date of such insurance payment. Jackson Investment Co. v. Wingo, 248 Miss. 388, 159 So.2d 175 (1964). The payment out of the proceeds of an insurance policy was an involuntary one and the general rule is that involuntary payments are applied by the courts according to equitable principles in such a way as will best protect the rights of all parties. 60 Am.Jur.2d, Payments § 89 (1972). In computing the amount of unearned interest received by Holders, the Court adopts the statutory rate of six percent as a proper discount rate to apply in this case. Thus computed, Gray is entitled to a refund of unearned interest of $184.-67, and the judgment in favor of Gray will be reduced to this amount.

The other question for decision is whether under the circumstances the retention by Holders of the entire face value of the unmatured installment payments created a usurious transaction. We hold that it did not. At most, the interest received by Holders over the entire period amounted to only 7.299%, according to the Court’s calculations. Moreover, Holders were not obliged to receive voluntary payment before maturity since there was no prepayment privilege in the note. If the payment had been voluntary, the transaction would not have been rendered usurious even if the rate had exceeded eight percent. Hood v. First National Bank in Meridian, 208 Miss. 658, 45 So.2d 251 (1950).

The judgment of the court below is reversed and the judgment is reduced to $184.67, being the amount of unearned interest received by Holders.

Reversed and rendered.

RODGERS, P. J., and PATTERSON, INZER, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Billy Levi HARRIS v. STATE of Mississippi.
    No. 48563.
    Supreme Court of Mississippi.
    Sept. 9, 1975.
    Roland B. Skinner, Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley and Karen Gilfoy, Asst. Attys. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   Affirmed.


text:
    Charlie N. PARKER v. CHICAGO BRIDGE AND IRON COMPANY.
    No. 48319.
    Supreme Court of Mississippi.
    Sept. 15, 1975.
    Cumbest & Cumbest, P.A., George S. Shaddock, Pascagoula, for appellant.
    Mestayer, Edmundson & Watson, Jackson, Pascagoula & Meridian, for appellee.
    Before RODGERS, P. J., and SUGG and BROOM, JJ.
   Affirmed.