author: LEE, Justice,

text:
    Preston PONDER v. STATE of Mississippi.
    No. 49105.
    Supreme Court of Mississippi.
    Aug. 3, 1976.

      Henry E. Pope, Columbia, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice,

for the Court.

Preston Ponder was convicted of manslaughter by culpable negligence in the Circuit Court of Marion County and was sentenced to serve a term of ten (10) years in the Mississippi State Penitentiary. From that conviction and judgment he appeals to this Court.

Appellant contends that (1) the lower court committed error in refusing to require the State to produce evidence which would have been beneficial to the appellant, and (2) the verdict of the jury was contrary to the overwhelming weight of the evidence. No motions were filed after verdict nor were any post-conviction remedies sought.

Motions for production of statements of witnesses and for production of documents and evidence were filed by appellant on December 30,1974, and the case was continued at appellant’s request until the May, 1975 Term. No ruling was obtained from the trial court on those motions.

When the case was called on the trial date, both the State and the defendant announced ready. After voir dire examination and while the jury was being selected in chambers, appellant renewed his motions which were then overruled by the court as being violative of Rule 8 adopted by the Circuit Court of Marion County. That rule required the movant to pursue a motion or dilatory pleading to decision during the term of court the motion was filed.

We hold that the trial court did not commit error in overruling the motions. There is no indication from the. record that the prosecution had statements beneficial to or exculpatory of the appellant, or that a failure to disclose any material in its possession prejudiced appellant. He was not entitled to statements of witnesses simply as such.

Two highway patrolmen testified for the State describing the scene, the condition and contents of the vehicles, and the condition of the appellant. The fourteen-year-old son of deceased testified that (1) his father drove his automobile over a small hill crest at a reasonable rate of speed, (2) appellant was driving an automobile at a high rate of speed in deceased’s lane of travel approaching him, and (3) appellant’s automobile collided with deceased’s automobile at a time when there was nothing deceased could do to prevent the collision. Appellant testified that (1) deceased’s automobile came over the hill with the left wheels on the center line, and (2) appellant put on his brakes and skidded into the lane of deceased. It is assumed that appellant requested subpoenas for, and talked to, all the witnesses in his investigation of the case and preparation for trial, and that he knew all the facts. Therefore, he could not have been taken by surprise or prejudiced because the motions were denied.

Appellant’s contention that the verdict of the jury was contrary to the overwhelming weight of the evidence was not assigned as a ground for new trial in the lower court, and it may not be raised here for the first time. A trial judge cannot be put in error on a matter which was not presented to him for decision. Cooper v. Lawson, 264 So.2d 890 (Miss.1972); Mercier v. Davis, 234 So.2d 902 (Miss.1970); Carpenter v. Savage, 93 Miss. 233, 46 So. 537 (1908). Although we do not consider this assignment of error, from the brief statement of the facts, supra, it may be seen that the evidence constituted a guilt issue for the jury.

There being no reversible error in the record, this cause must be and the same is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BROOM, Justice, SMITH, Justice

license: Public Domain

text:
    Gary McCLENDON v. STATE of Mississippi.
    No. 49011.
    Supreme Court of Mississippi.
    July 27, 1976.
    Don H. Evans, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   BROOM, Justice,

for the Court:

Burglary was the offense for which appellant, Gary McClendon, was tried and convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi. He appeals from a judgment requiring him to serve seven years imprisonment. We affirm.

Howard Brothers Pharmacy, located on Interstate 55 North in Jackson, Mississippi, was burglarized shortly before midnight on October 1,1974. C. B. Floyd, a Jackson city patrolman, went to investigate after a burglary alarm went off, and upon arrival saw one subject (Jack Robinson) sitting in a car. He saw another subject, later identified as appellant, run from the building to the car and place something in the car. Robinson, the driver of the car, apparently observed Officer Floyd and hurriedly drove away, leaving appellant at the scene. Within a short time Floyd pursued and arrested Robinson after which he promptly returned to the area behind the pharmacy building where appellant (attempting to climb a fence) was arrested. Floyd heard appellant say: “Don’t shoot. I did it.” Appellant wore no shoes and mud was on his arms. A pair of shoes was found in the parking lot, and also found were a crowbar and certain pharmaceutical supplies.

While several assignments of error were made and argued, only one merits discussion. The record shows that without objection trial began and ended on November 20, 1974. After two law officers testified for the state, appellant, by ore tenus motion, requested a recess

until 9:00 o’clock A.M., November 21, 1974, or until such time as Jack Robinson could be brought back to Hinds County to testify in this trial, .

The ore tenus motion was made (dictated into the record) during the trial and was made without any subpoena or any process whatever having been issued or requested for the witness Robinson (driver of the car into which Officer Floyd saw appellant place something). Appellant’s counsel said he discovered during the noon recess that Robinson, who had been convicted for burglary regarding the same incident, had been taken to the penitentiary at Parchman. Robinson and appellant were both represented by the same counsel, who attributed his failure to subpoena the witness to “. . . the large number of cases which he had scheduled for trial.” The motion under discussion did not clearly specify how long a recess or continuance was desired. It did not say that he desired a recess for merely a few hours or until another day certain, but vaguely specified “until such time as Jack Robinson could be brought back” to testify.

In our jurisprudence the trial court has broad discretion in the granting or refusing of a continuance or delay. In such cases, this Court will not disturb the holding of the trial court unless we can say from the facts shown in the trial that the trial court abused its discretion or that injustice has been done. Jackson v. State, 254 So.2d 876 (Miss.1971). Here there was no abuse of discretion on the part of the trial judge who denied appellant’s application for time, whether called a recess or delay or continuance. It cannot be said that an injustice has been done.

A similar situation was presented to this Court in Douglas v. State, 212 Miss. 176, 54 So.2d 254 (1951). During Douglas’ trial he had failed to subpoena certain witnesses whose presence he desired and asked for by motion ore tenus during the course of the trial. Counsel for Douglas orally stated into the record: “The defendant requests of the court a sufficient time within which to procure the attendance of witnesses, as aforesaid.” The request for time to procure the presence of witnesses was overruled and on appeal this Court affirmed the conviction, stating: “There was no formal motion for a continuance or postponement, as required by Section 1520, Code of 1942.” That section appears in the 1972 Code as § 99-15-29. As noted in Douglas, when the appellant here made his decision to ask for time to have Robinson present and testify, he should have filed a formal motion under what is now Code § 99-15-29, which statute requires an affidavit setting forth, among other things, that he has “used due diligence to procure . . . the presence of the absent witness . . . stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done.” Appellant’s ore tenus motion in the present case is in all practical aspects identical to that made in Douglas. It does not conform to the statute in that it is unsworn, has no affidavit included or attached, and fails to say that due diligence had been used to procure witness Robinson’s presence, and fails to state that the continuance was not sought for delay only, but that justice may be done.

As noted in Black’s Law Dictionary 1250 (4th ed. 1951), “pleading was anciently carried on ore tenus, at the bar of the court.” Exigencies which arise during the course of present day court trials are often rightly met with such pleadings, but the substance and content of such pleadings required by a statute cannot be ignored. Here, had the ore tenus motion (not conforming with the statutory requirements) been upheld, appellant would have been allowed to accomplish with such a deficient informal pleading what this Court has repeatedly held could not be done except by a written sworn motion.

A similar situation was before the Court in Gatlin v. State, 219 Miss. 167, 68 So.2d 291 (1953), where the defendant moved that the case be passed “for two or three days.” Ruling that his motion was defective, this Court stated the “request to pass the case did not meet the requirements of Section 1520.” Gatlin further held that the granting or denial of a continuance is largely in the discretion of the trial court. Douglas and Gatlin require affirmance of this case unless we overrule them.

No charge has been made or evidence presented that the removal of the witness Robinson from the jail to Parchman resulted from trickery, deceit or improper motive on the part of the state, or that his removal was contrary to any statute. Appellant’s counsel (who also represented Robinson) knew better than anyone else whether Robinson’s presence was necessary. Therefore, due diligence required at least a request for process upon Robinson especially where, as here, the record does not show that his removal was contrary to any established policy of the trial court, local practice, or long usage regarding the removal of convicts to the penitentiary.

The record shows that when brought back, while testifying on direct examination at the hearing of appellant’s motion for a new trial, Robinson testified that the appellant was unknown to him and was not with him when Howard Brothers Pharmacy was burglarized. Yet on cross-examination of Robinson, the following question was put to him: “You’re not telling the Court that Gary McClendon didn’t burglarize Howard Brothers Pharmacy, are you?” His answer was in the negative. At another place he indicated, in the language of the circuit judge, that he was without knowledge “that Gary McClendon broke into that drug store' . . . .” Also noteworthy is the fact that after making his skimpy unsworn motion ore tenus for time to procure Robinson’s presence, when the state put on its proof and rested, the appellant failed to renew his motion for additional time and rested without putting on any proof whatsoever.

Our view is that the trial court did not abuse its discretion in refusing to grant appellant time in this case and it is not shown that any injustice has resulted. The jury accepted the version of the state as true and convicted the appellant, and since no reversible error was made, the case must be affirmed.

AFFIRMED.

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

INZER, P. J., and WALKER, SMITH and LEE, JJ., dissent.

SMITH, Justice

(dissenting):

The question in this case is whether McClendon received a fair trial. In my view he did not.

McClendon was convicted of having burglarized a drugstore and was sentenced to serve seven years in the penitentiary.

Near midnight, a patrolman, answering a silent alarm, arrived at the drugstore from which it had originated. There he found one Robinson seated in a parked automobile. At that moment, a man ran out of the store, appeared to place something in Robinson’s automobile, and unsuccessfully attempted to get in it. The officer was unable to observe the features of this man but said that he had worn a dark shirt with somewhat lighter trousers. Robinson started up his car and drove away, closely pursued by the officer in his patrol car, leaving behind the man who had run out of the store. Robinson’s car was wrecked after reaching the public road when he attempted to cut in front of the officer. The officer testified that he got Robinson out of his wrecked car “after some persuasion,” handcuffed him, and drove him back to the parking lot on which the drugstore fronted. The officer said that, as he started in pursuit of Robinson, the man who had come out of the drugstore started running north toward Hanging Moss Creek. On his return, the officer found McClendon, the appellant here, who was running south. The theory of the prosecution is that McClendon was the man who had run out of the drugstore.

The officer said he was “bearing down on the subject (McClendon) at a high rate of speed” telling him to stop or he would shoot. At this time McClendon, in his flight, reached a seven or eight foot fence, which separated the parking lot from an apartment complex. He attempted to get over this fence but was unable to do so. As the officer expressed it:

Like I say, I did have my revolver on this subject. I had him up against the' fence. I did tell him not to move or I would shoot. He made the statement, ‘Don’t shoot.’ One statement I distinctly remember, ‘Don’t shoot. I did it.’ And ‘Don’t shoot. You’ve got me.’ I believe is what it was.

It was discovered that McClendon was barefooted and a pair of shoes were discovered somewhere on the parking lot.

No point is made here of the dubious voluntariness of McClendon’s statement, “Don’t shoot, I did it” made under the above circumstances.

Robinson was tried and convicted of burglary in the Circuit Court of Hinds County a few days before McClendon’s trial on the same charge was scheduled to begin on November 20.

The jail in which Robinson was confined pending his removal to the penitentiary was on the floor above the courtroom in which McClendon’s trial was taking place. McClendon’s attorney had conferred with Robinson prior to the trial and intended to use him as a defense witness who would testify that he had not been acquainted with McClendon at the time of the burglary but that he had'met him in jail and that McClendon was not the man who had run out of the store and had attempted to get in Robinson’s car. Obviously this testimony was vital to McClendon’s defense, particularly since there was no other witness who could so testify.

McClendon’s trial began on November 20 and continued until noon when a recess was taken by the court until 1:30. During the noon recess, McClendon’s attorney went upstairs to the jail for the purpose of having Robinson brought down to testify. He then learned for the first time from the jail officials that officers had left with Robinson about forty-five minutes before to transport him to the penitentiary at Parch-man. When the court reconvened, at 1:30 that afternoon, McClendon’s attorney immediately acquainted the trial court with what had occurred. The trial judge also was informed that Robinson could be brought back by the officers from Parch-man that same afternoon if the judge should so order.

The defense then moved the court to recess the trial until 9:00 the next morning, November 21, or until such later time as would enable the officers to bring Robinson back so that McClendon might have the benefit of his testimony.

The court responded to the motion by conducting a close inquiry of McClendon’s attorney as to whether he had not been offered by the prosecution to allow McClen-don to plead guilty and take six years imprisonment. The relevancy of this to the matter before the court is not readily apparent.

It was pointed out to the court that Robinson had been in custody in jail, pending transfer to the penitentiary, and that the sudden removal of Robinson to Parchman by State officials had been unexpected, that passing the case until 9:00 the next morning could in nowise prejudice the prosecution, that no subpoena had been issued for the witness because he was in the legal custody of the State, confined in a jail above the courtroom in which the trial was taking place and that an order for Robinson’s return should be entered.

In response, the court ordered that a radio message be dispatched to determine whether the officers could have Robinson back that day. Then the court said this:

The Court finds it a fact that as of yesterday the District Attorney’s office offered this defense attorney six years for this crime in the State Penitentiary as an offer of settlement, and defense attorney came to this Court and asked if it would accept five years with two suspended and three to serve, and this Court advised that he would not say yes or no at that time. And based on information as of last night, that offer still stood.
So I overrule the motion to recess and continue, although the Court will try to have this man back this afternoon prior to the completion of this trial.

As it developed Robinson was, in fact, returned to the county jail about 8:00 that night, but this was several hours after the trial had been concluded.

Following the discussion of the plea bargaining already mentioned, the trial resumed. The prosecution put on another witness who identified and testified at some length about numerous articles said to have been taken from the drugstore. The record does not reflect the hour at which the last witness concluded his testimony, or when instructions were presented or when argument of counsel was concluded. It seems almost certain, however, that the afternoon must have been far spent.

At the hearing of a motion for a new trial following McClendon’s conviction, Robinson did, in fact, give positive testimony to the effect that, (1) he had not been acquainted with McClendon prior to the occasion on which he, Robinson, had been arrested in connection with the drugstore burglary, (2) the man who had come out of the drugstore there to get in his, Robinson’s car, was not McClendon and (3) that he, Robinson, had not been a party to the drugstore burglary himself.

No one does or can question the fact that if this testimony on the part of Robinson had been submitted to the jury and the jury had believed it (and it would have been their sole prerogative to believe it or not to believe it), McClendon must have been found not guilty.

The action of the court in denying McClendon’s request to pass the case until 9:00 the next morning, when it was known that the State could have their prisoner present, is sought to be justified on the single ground that defense counsel had omitted to have a subpoena issued for the prisoner Robinson and therefore could not complain of his absence. Taking the afternoon recess an hour or so earlier than usual would have enabled the State to bring back their prisoner in time to testify when court convened at 9:00 the next morning. This would have prejudiced nobody.

Commitment of persons to the penitentiary who have been convicted (as Robinson had been a few days before) is regulated by Mississippi Code Annotated section 99-19-45 (1972), which provides, in part:

The clerks of the circuit court of the several counties in the State of Mississippi shall furnish the secretary of the Mississippi Penitentiary Board, within five days after adjournment of court, a commitment paper showing the name of the person convicted, the crime, term of sentence, date of sentence, sex, color and a brief history of the crime committed.

The removal of Robinson by the State, in the midst of McClendon’s trial, was not foreseen by his counsel. While Robinson’s removal appears to have been premature, counsel stated that his failure to have the subpoena issued for the prisoner Robinson, who languished upstairs over the courtroom in jail, was because he relied on what he said was the “custom” in such cases of merely “sending upstairs” when the presence of a prisoner was desired as a witness in the course of a trial.

Requiring compliance with reasonable rules of procedure is indispensable to the orderly administration of justice. There is a point, however, beyond which the cutting off of a fundamental right because of an omission to comply with a procedural rule may become arbitrary and oppressive, particularly, as here, where no prejudice will result to anyone. The passing of the case until 9:00 the next morning, under the circumstances of this case, in order that McClendon might have the benefit of Robinson’s testimony, particularly where Robinson was a prisoner of the State whose movements were only such as the State might dictate, and who was at all times in the custody and control of the State, is to place a disproportionate emphasis and value upon the formality of the subpoena, since the subpoena, in such a situation, could be no more than a formality. The importance of giving the defendant a fair trial before an impartial jury upon all available evidence far outweighs any conceivable inconvenience (as distinguished from prejudice) that could have resulted in taking the afternoon recess an hour or so earlier than usual.

No one questions the proposition that a trial judge possesses discretion in deciding whether or not to pass a case to a later hour. But the discretion contemplated is sound judicial discretion, and is not wholly uncontrolled or unrestricted. It does not permit arbitrary or unreasonable action. It must be the result of sound judgment formed upon all of the circumstances, with due consideration and weight being given to the respective alternatives involved and to their relative importance.

To say that, on a motion to pass a case to a later hour, a trial court is vested with discretion, is to state a well known general principle. But when, in the course of a trial, the trial court is confronted with unusual circumstances such as those in this case, whereby it becomes his duty to choose between granting a few hours harmless delay or cutting off the right of a defendant in a criminal case to have present the only witness who will or can testify to his innocence, the latter so far and so clearly outweighs the former that, in order to comply with the fundamental concept implicit in the phrase “sound judicial discretion” requires that the court grant the delay.

The conviction of McClendon under the above circumstances, in my view, runs counter to traditional ■ notions of fair play and the doing of substantial justice and amounted to a denial of his constitutional right to a fair trial. The conviction should be reversed and the case remanded for a new trial.

INZER, P. J., and WALKER and LEE, JJ., join this dissent.


author: PATTERSON, Presiding Justice,

text:
    ROBINSON INDUSTRIES, d/b/a McDonald’s Restaurant v. CITY OF PEARL, Mississippi.
    No. 48699.
    Supreme Court of Mississippi.
    July 27, 1976.

      Young, Young & Scanlon, Robert B. Ses-sums, John Howard Shows, Jackson, for appellant.
    Bacon & Smith, Arthur F. Jernigan, Jr., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   PATTERSON, Presiding Justice,

for the Court:

Robinson Industries, doing business as McDonald’s Restaurant, filed a bill of exceptions in the Circuit Court of Rankin County seeking review of an order of the Board of Aldermen of the City of Pearl. The order denied McDonald’s permission to erect a restaurant sign above the height limitation established by an ordinance of the city. The court overruled the bill and from that order McDonald’s prosecutes this appeal.

There were no municipal ordinances regulating the heights of signs within Pearl prior to May 7, 1974. Before this time McDonald’s had completed its plans for the construction of a restaurant within the municipality. In addition to the restaurant building the plans included the erection of a distinctive “golden arches” sign seventy-five feet in height. The construction of the restaurant began March 13, 1974. The mayor and board of aldermen on April 2, 1974, declared their consideration of comprehensive zoning ordinances, including a zoning map, for adoption by the municipality. Notice was published on April 4 and 11, 1974, that such zoning ordinances had been filed with the city clerk and that a public meeting for objections to the proposals would be held April 22, 1974. The appellant did not protest the pending ordinances.

The appellant submitted its plan for the construction of the sign for contract on April 2, 1974. The proposal was accepted by Tennessee Continental Corporation on April 25, 1974, and a contract was entered into for its erection.

On August 8,1974, construction began on the “golden arches” sign after the restaurant building had been substantially completed. A building inspector of the city then advised the contractor not to erect the sign because it would exceed the thirty-foot height limitation of the city ordinance. McDonald’s protested this interpretation of the zoning ordinance, setting forth its reasons by letter to the mayor of the city. The protest was referred to the planning commission for its recommendation. The commission voted to deny the permit, believing it varied from the law. The board of aider-men on October 1, 1974, also denied McDonald’s request to erect a sign seventy-five feet in height. This order was affirmed by the circuit court.

The first issue is whether the limitation on the height of signs in industrial districts has application within the commercial district wherein McDonald’s restaurant and sign were located. Sections 502.8 and 502.9 of the proposed ordinances, now the ordinances of the city, provide in part as follows:

502.8 Signs in Commercial and Industrial Districts. The limitations as to number and area of signs in Commercial and Industrial Districts shall apply separately to separate establishments, with the area of signs computed on the basis of the actual width of building frontage occupied by the particular establishment. Business signs identifying products or services available on the premises or advertising a use conducted thereon may be displayed in Commercial and Industrial Districts under the conditions and to a maximum aggregate area of all signs as follows.
502.9 Signs in Industrial Districts. Outdoor advertising signs, billboards and poster panels as separate uses, subject to the following:
******
(2) Maximum height: thirty (30) feet measured from the nearest street grade line; there shall be no required minimum height.

The first section refers to both commercial and industrial districts in the title and body of the enactment. The sequence of the sections, as well as the concluding words “as follows” of the first, establish, without doubt, we think, the pari materia status of the sections. No reference is made in Section 502.9, however, to the word “commercial” or “commercial districts.” It mentions only “signs in industrial districts” and in subsection (2) limits them to thirty feet in height. We are of the opinion the omission of “commercial” or “commercial districts” from Section 502.9 was an inadvertence or oversight not affecting the intention of the ordinance to limit signs to a height of no more than thirty feet in both commercial and industrial districts.

Moreover, Section 802 (omission clause) of the proposed ordinance of Pearl, now the ordinance, states that the omission of any specific “word” shall not be interpreted as permitting any variation from the general meaning or intention of the ordinance. In considering Section 502.8 (commercial and industrial districts) in pari materia with Section 502.9 (industrial districts), which contains subsection (2) (height limitation of thirty feet), the overall intention of the ordinance is apparent and that is, its general purpose was to shield the municipality from signs in excess of thirty feet in height. • The incongruity .of limiting the height of signs in an industrial district, but permitting unrestricted height in an area of higher classification, a commercial district, leads to a strained construction that we cannot adopt. We conclude the sections do not afford an interpretation permitting signs in excess of the limitation in commercial districts even though Section 502.9 does not specifically allude to such area.

Zoning ordinances are essentially legislative functions with limited judicial review. City of Jackson v. Ridgway, 261 So.2d 458 (Miss.1972), and see Fowler v. City of Hattiesburg, 196 So.2d 358 (Miss. 1968), where it is held:

On appeal to this Court from a zoning ordinance of a municipal council, or board of mayor and aldermen, the presumption is in favor of the reasonableness of the ordinance, and although this presumption must, of course, yield to facts to the contrary; still every intendment is to be made in favor of the reasonableness of the exercise of municipal police power in making regulations. Unless the ordinance is clearly invalid, the courts will not so declare.
* * * * * *
. It is only when their acts under their police power become arbitrary, capricious, confiscatory or fraudulent, that this Court will interfere with the ordinary performance of their duties so as to set aside a municipal ordinance. (196 So.2d at 362).

The appellant had notice of the pendency of the ordinance at the time it entered into the contract for the construction of the sign. The ordinance was in effect on August 8,1974, when construction actually began. There is nothing to indicate that the ordinance was unreasonable or that its formulation by the city in the exercise of its police power was arbitrary, capricious or confiscatory. We, therefore, are of the opinion that the presumption of reasonableness extends to the ordinance and that its validity was correctly upheld by the circuit court.

The next issue is whether near completion of the restaurant building with substantial expenditures prior to the adoption of the ordinance made its height limitation inapplicable to the construction of the sign. There were no restrictive ordinances within the municipality when McDonald’s made its plans for the construction of its restaurant and there were signs in the area above the present height limitation. However, the restaurant building and the sign were separable from each other and were the subjects of separate construction contracts. Moreover, the initial construction on the sign did not begin until August 8,1974, four months after the mayor and board of aldermen had publicly and officially declared their consideration of the adoption of comprehensive zoning ordinances. The appellant’s expenditures on the sign, in our opinion, were not substantial at the time it had notice of the impending zoning ordinances. In McQuil-lin, Municipal Corporations, section 25.157 at 501-502 (1965) an analogous situation is discussed. It states:

A permit is not protected, however, against revocation by subsequent zoning legislation where changes of position, expenditures or incurrence of obligations under the permit have been minor, minimal, or relatively insignificant, i. e., not substantial. The test is sometimes said to be whether actual construction has begun or whether the land was physically used for the construction contemplated, and not alone whether money has been spent in the preparation to build. The test of substantiality of expenditure in this connection, however, cannot be met by the mere isolated, unrelated recitation of a dollar figure, but substantiality is to be determined, rather by an assessment of the proportion which the expenditure bears to the total expenditure which would be required to complete the proposed improvement.

McDonald’s expenditures toward erection of the sign were not so substantial as to grant it the vested right to continue the construction in derogation of the ordinance.

The substantiality test is also qualified by notice, actual or constructive, of the permittee of the pendency of a zoning amendment. In McQuillin, Municipal Corporations, section 25.157 at 502-503 it is stated that the rule has no application for variance from the ordinance when the affected party has notice. Sharrow v. Dania, 83 So.2d 274 (Fla.1955), expresses this same rule. Indeed, it seems to be the general rule. The continued expenditures for the erection of the sign after appellant had notice of the pending ordinance affords no basis, in our opinion, for its invalidation.

AFFIRMED.

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


author: SUGG, Justice,

text:
    Mary Jean SMITH v. Ollie JONES and Janis White.
    No. 48736.
    Supreme Court of Mississippi.
    July 27, 1976.

      Q. Earl Webb, Meridian, for appellant.
    Paul Abston, Meridian, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Plaintiff sued defendants for slander and a trial in the Circuit Court of Lauderdale County resulted in a jury verdict for the defendants.

The evidence established that each of the defendants, in separate phone calls on different dates, made defamatory statements to the plaintiff. The issue is whether there was a publication of the defamatory statements.

Publication is an essential element of tort liability for slander. The communication of a defamatory utterance must be in the presence of one or more other parties who heard the utterance and understood it to be defamatory. Defamatory words spoken only to the plaintiff is not a publication that will support an action for slander. Kirk Jewelers v. Bynum, 222 Miss. 134, 75 So.2d 463 (1954). W. Prosser, Handbook of the Law of Torts, § 113 at 766-67. Publication may be to any third person, including a member of the plaintiff’s family. Id; 50 Am.Jur.2d Libel and Slander, § 166 at 668 (1970). There is no publication if the defendant spoke the words with the reasonable expectation that they would not be overheard by a third party:

There is no liability for publication which the defendant did not intend and could not reasonably anticipate, as in the case of words spoken with no reason to suppose that anyone but the plaintiff would overhear them .

W. Prosser, supra, § 113 at 774. Accord, Restatement of Torts § 577, comment N at 199 (1938); Annotation 92 A.L.R.2d 219, § 8 at 236-37 (1963); 53 C.J.S. Libel and Slander § 80 at 129, note 2 (1948); 50 Am.Jur.2d Libel and Slander, § 147 at 654, notes 9 and 10 (1970).

The test of publication is: Were the words spoken in such a tone or manner and under such circumstances that the defendants had a reasonable expectation that no one would hear the words except the plaintiff?

One of plaintiff’s sons, Randy, eavesdropped on Mrs. White’s phone call to plaintiff either by plaintiff’s invitation or on his own initiative. Whatever prompted him to listen, it is clear that plaintiff knew that Randy was listening to the conversation. More importantly, it is equally clear that Janis White did not know that anyone other than plaintiff was listening to the conversation.

Both of plaintiff’s sons, Randy and Ricky, eavesdropped on Mrs. Jones’ telephone call to the plaintiff. Ricky listened to part of the conversation at the request of plaintiff. Ricky interrupted the conversation and called Mrs. Jones a liar. This was the first indication Mrs. Jones had that the conversation was being overheard by a third party. No defamatory statements were made by Mrs. Jones after she knew that her conversation with plaintiff was being overheard by another party.

The conclusion is inescapable that both defendants uttered the statements believing that only the plaintiff was listening to the conversation. There was no publication because defendants spoke the words with the reasonable expectation that they would be heard by the plaintiff only. The evidence does not sustain the contention of plaintiff that the defamatory statements were repeated to other persons.

A review of the record leads us to conclude that, although erroneous instructions were given for both plaintiff and defendants, the judgment did not result in a miscarriage of justice. We therefore affirm under Mississippi Supreme Court Rule 11. Meeks v. Hughes, 228 So.2d 582 (Miss.1969).

AFFIRMED.

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


author: BROOM, Justice,

text:
    Burnell HAMLIN v. Paul BARRETT, Sheriff.
    No. 49059.
    Supreme Court of Mississippi.
    Aug. 3, 1976.
    Brown, Alexander & Sanders, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by J. B. Gar-retty, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

for the Court:

By petition for writ of habeas corpus, Hamlin (appellant) is testing the validity of a judgment (upon his guilty plea) of the Circuit Court of Warren County ordering him to serve three years in the penitentiary for forgery. The sentence was suspended and Hamlin placed on probation, but later the suspension and probation were revoked at the instance of the prosecution and Hamlin was ordered imprisoned for three years. In his petition, Hamlin charged that his conviction was void for having been induced by the prosecutor’s promise of probation which promise could not be legally fulfilled or performed because Hamlin had a prior felony conviction in the State of New York.

In this state’s jurisprudence, an order of revocation of a suspended sentence or probation is not appealable. However, in proper cases habeas corpus may apply to determine whether the court (1) had jurisdiction to issue the order, (2) rendered a valid judgment, and (3) accorded due process to the appellant by appropriate notice and public hearing. Pipkin v. State, 292 So.2d 181 (Miss.1974); Ray v. State, 229 So.2d 579 (Miss.1970).

The issue is: Was the Warren County Circuit Court’s original judgment sentencing Hamlin to the penitentiary (which also placed him on probation) a valid order? At the habeas corpus hearing, there was contradictory evidence upon the issue of whether or not the prosecutor became aware of Hamlin’s prior New York felony conviction (armed robbery) before recommending that the court accord Hamlin probation. The prosecutor denied having knowledge of the prior conviction until after the court accepted Hamlin’s plea of guilty and placed him on probation. Other evidence disputed the prosecutor’s testimony to some extent. Although Probation Officer Gober testified that he told District Attorney Ellis he had given Hamlin “his discharge from the state of New York,” he did not testify that he told the district attorney that Hamlin had a prior felony conviction for armed robbery.

At the habeas corpus hearing, there was placed in evidence a transcript of the circuit judge’s examination of Hamlin on July 10, 1974, when Hamlin was convicted upon the plea of guilty, sentenced to the penitentiary and placed on probation. Two facts are demonstrated by the transcript: (1) The plea was voluntary; and (2) Hamlin pleaded guilty not because he was “enticed or forced,” but because he was guilty and wanted to enter the plea. The circuit judge was careful to protect Hamlin’s rights by making the appropriate inquiries so as to determine that Hamlin was- being accorded due process. Before accepting Hamlin’s guilty plea, the judge asked him if the offense then before the court was his first offense, to which Hamlin replied that his only prior offense was a “traffic ticket.”.

We have carefully examined the record before us so as to determine whether the circuit court had jurisdiction and whether the order of the circuit judge finding Hamlin guilty upon his guilty plea and placing him on probation and parole was a valid judgment. We hold that the court had jurisdiction even though the grant of probation was technically inappropriate. In effect the circuit judge in the habeas corpus hearing, based upon substantial evidence, found (though no such specific finding was spelled out) that the prosecutor was not aware of Hamlin’s prior conviction until after the plea of guilty was made and the probationary sentence meted out.

Hamlin’s dealings with the prosecutor appear from the evidence to have been at arm’s length. If the record shows any “fraudulent and hollow promise” (as charged in his petition), it was on the part of Hamlin who deliberately declined to reveal his prior conviction when queried by the sentencing judge. From the record, it cannot be said that the prosecutor acted in bad faith, or that he failed to carry out his part of the plea bargainin' process. When Hamlin pleaded guilty, he did so accompanied by counsel, and with knowledge of his prior New York felony conviction (robbery) which he chose to conceal from the sentencing court. He could not logically have confused such a conviction with what he told the judge was a “traffic ticket.” Upon this record, we are unwilling to hold that his failure (before being sentenced) to disclose his past record somehow vitiates the judgment of the trial court even though one portion of the judgment improperly allowed probation. After learning that Hamlin had the prior felony conviction making him ineligible for probation, the court had the power to rectify the error. Accordingly, the court found (because of Hamlin’s withholding information pertaining to the prior conviction) the probationary sentence was improper and “ought to be corrected and the appropriate sentence imposed.” There is no merit in the contention that the judgment rendered was not a valid judgment.

This case makes it clear and we stress that before granting probation to defendants convicted of crimes trial judges, prosecutors, and defense counsel must exercise care to see that probation is proper under § 47-7-33, supra. Here, though after developed facts (prior felony conviction) show that probation was improperly and mistakenly afforded Hamlin, nevertheless the court had jurisdiction over him and all aspects of the case when each order was entered. Upon the facts revealed by this most unusual and peculiar case, Hamlin himself misled the trial court about his pri- or felony, conviction and thereby gained freedom while on probation. The fact that he succeeded in making himself beneficiary to his wrongful withholding of the facts does not entitle him to a reversal or another opportunity to plead to the indictment.

AFFIRMED.

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

      . Mississippi Code Annotated § 47-7-33 (1972) allows trial judges to place a defendant on probation in certain instances where he has not been previously convicted of a felony.


text:
    Henry FORREST v. STATE of Mississippi.
    No. 49171.
    Supreme Court of Mississippi.
    Aug. 3, 1976.

      Smith, O’Hare & Atkinson, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Henry Forrest was convicted of burglary and sentenced to serve three and one-half years in the state penitentiary by the Circuit Court of the Second Judicial District of Bolivar County. We reverse and remand for a new trial.

The issue is whether the defendant was denied a fair trial because of questions asked by the district attorney and statements made in his argument to the jury.

Incident number one occurred during the redirect examination of Officer Ivory Brown who was one of the state’s witnesses. On cross-examination defendant’s counsel developed that there was a strong similarity of appearance between the defendant and several of his brothers and it was difficult to distinguish one from the other:

Q. As a matter of fact, Henry Forrest has pulled this stunt before, about his brothers, hasn’t he?
MR. O’HÁRE: I object.
COURT: I sustain the objection.
MR. O’HARE: I ask that that be stricken from the record.
COURT: The jury will disregard the last question and answer. No answer was made to the last question.

Defendant did not move for a mistrial and the court did all that was requested of it by the defendant.

Incident number two occurred during the cross-examination of George Forrest, a cousin of defendant, who was called as a witness to establish an alibi.

Q. You are one of Henry’s professional witnesses, aren’t you?
MR. O’HARE: —Your Honor, we object to that.
COURT: I sustain the objection.
MR. O’HARE: Its highly improper.
Q. Have you ever testified for Henry before?
A. No, I haven’t.
Q. You never have testified for him before?
A. No, I haven’t.

Again defendant did not move for a mistrial and the court did all that was requested of it when it sustained the objection. However, after the objection was sustained the district attorney asked the witness twice if he had testified for defendant before, thus pursuing a line of questioning that had been ruled inadmissible by the court.

Incident number three occurred during the further cross-examination of George Forrest.

Q. It is not unusual for Henry to break in a place, is it?
MR. O’HARE: Just a minute—
COURT: I sustain the objection.
MR. O’HARE: We ask for a mistrial.
COURT: Ladies and gentlemen of the jury, you will disregard the last statement, question made by the District Attorney; it has no bearing on the issue in this case.

Although the court did not specifically overrule defendant’s motion for a mistrial, its action in instructing the jury to disregard the question was tantamount to overruling the motion for a mistrial.

Incident number four occurred during argument to the jury.

MR. GRAVES: I want to show you sometning. ladies and gentlemen, do you know what he really wants you to convict him of is malicious trespass. You notice this instruction D-4. The reason that “D” is on there is because it is requested by the Defendant—
MR. O’HARE: —If the Court please, I object.
COURT: I sustain the objection; that’s not proper.
MR. O’HARE: We move for a mistrial.
COURT: The motion for a mistrial is overruled.
MR. GRAVES: I can’t bring out who requested it?
COURT: No, sir, you certainly cannot; that’s a very strong rule in this Court, and of the Circuit Judge’s Conference, you may not do so.
MR. GRAVES: All right, sir, I thought I could bring that out.
COURT: No sir, you may not under any circumstances.

After the argument had ended, the court made a valiant effort to minimize the harm by further instructing the jury.

COURT: Ladies and gentlemen of the jury, the case is now concluded. I want to clarify one thing so there won’t be any misapprehension about it, and that is, the instructions I gave you are the instructions of the Court, and not the instructions of any side or the other; those are the entire instructions, you are to consider all instructions as a whole. They are the instructions of the Court; they are not the instructions of the State or the Defendant; but every one that I will submit to you, that you will take with you in the jury room, are the instructions of the Court. Please understand that.

The state argues that the questions propounded by the district attorney in the first three incidents did not constitute reversible error because (1) defendant failed to request a mistrial in the first two incidents, (2) failed to obtain a ruling on a motion for a mistrial in the third incident, (3) the court properly sustained defendant’s objection in each incident and, when requested, instructed the jury to disregard the remarks, and (4) the court’s admonition neutralized any prejudicial effect stemming from the questions.

We have held in numerous cases that when the court sustains objections to improper testimony or improper remarks of counsel, it is presumed, unless otherwise shown, that the jury followed the directions of the trial judge to disregard such comment on testimony. Holifield v. State, 275 So.2d 851 (Miss.1973). We have also held that when the court sustains objections to an improper question and defendant does not request the court to instruct the jury to disregard the question and answers, no error results. Clanton v. State, 279 So.2d 599 (Miss.1973). However, the facts of this case are distinguished from our prior decisions in that the district attorney persisted in propounding improper questions calculated to have the effect they had; namely, to infer that defendant had committed other offenses. In Sumrall v. State, 257 So.2d 853 (Miss.1972), we stated:

It is contended by the appellant that the admission of this evidence was highly prejudicial and served no other useful purpose than to prejudice the jury against the defendant. It is a well-settled general rule that the issue on a criminal trial should be single and that the testimony should be confined to that issue and on the trial for one offense the prosecution should not be allowed to aid the proof against the defendant by showing he committed other offenses, even though of a like nature. Cummings v. State, 219 So.2d 673 (Miss.1969); Ladnier v. State, 254 Miss. 469, 182 So.2d 389 (1966); Brown v. State, 224 Miss. 498, 80 So.2d 761 (1955); Pegram v. State, 223 Miss. 294, 78 So.2d 153 (1955); Floyd v. State, 166 Miss. 15, 148 So. 226 (1933). (257 So.2d at 854).

Sumrall is distinguished from this case in that there was testimony that Sumrall had committed other crimes, whereas in this case the questions only inferred that defendant had committed other crimes. Although this distinction is made, the rule in Sumrall is applicable because the questions were persistent and were designed to implant in the minds of the jury the idea that the defendant had committed other crimes.

With respect to the argument of the district attorney, we note that we have been reluctant to reverse a criminal conviction on the ground of prejudicial remarks made by a prosecuting attorney. The general rule is that where the trial judge sustains defendant’s objection to the remarks and instructs the jury to disregard the statement, the remedial acts of the court are usually sufficient to remove any taint of prejudice. Dixon v. State, 306 So.2d 302, 303 (Miss.1975); Clemons v. State, 320 So.2d 368 (Miss.1975); Herron v. State, 287 So.2d 759, 765-66 (Miss.1974); Myrick v. State, 290 So.2d 259, 260-61 (Miss.1974); Holifield v. State, 275 So.2d 851 (Miss.1973). Cf. Mills v. State, 304 So.2d 651 (Miss.1974). This rule, of course, assumes that the remarks were not so prejudicial that the curative acts of the court were ineffective to remove the prejudice. See Myrick v. State, supra, at 261-62.

The district attorney’s remarks violated Rule 28 of the Uniform Rules of the Circuit Courts of Mississippi which provides that: “All instructions by parties shall otherwise not be identified as being given by the' parties or the state.”

This case does not fall within the harmless error rule. An error is harmless only when it is apparent on the face of the record that a fair minded jury could have arrived at no verdict other than that of guilty. Rule 11, Miss.Sup.Ct. Rules (1976). Kuhn v. State, 324 So.2d 744 (Miss.1976); Dixon v. State, 306 So.2d 302 (Miss.1975). This is not such a case because the evidence was fairly evenly divided on the issue of defendant’s guilt. On such a balanced factual issue the questions of the district attorney denied defendant a fair trial because they were designed to prejudice the jury against the defendant.

The improper questions and improper argument, when considered together, were reasonably calculated to unduly influence the jury in its decision. None of these errors, when considered separately and apart from the others, is sufficient to justify reversal of the case. However, when they are considered as a whole, it is our view that they resulted in the appellant being denied a fair trial. Russell v. State, 185 Miss. 464, 189 So. 90 (1939); Nelson v. State, 129 Miss. 288, 92 So. 66 (1922).

REVERSED AND REMANDED FOR NEW TRIAL.

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


author: SMITH, Justice, for the Court.

text:
    Mrs. Dorothy S. SMITH v. MAGEE ATTENDANCE CENTER.
    No. 48688.
    Supreme Court of Mississippi.
    Aug. 3, 1976.

      John K. Keyes, Collins, for appellant.
    Aleita M. Sullivan, Mendenhall, for appel-lee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   SMITH, Justice, for the Court.

Mrs. Dora S. Smith, a teacher, was discharged by the Magee Attendance Center, a public school. She was granted a hearing under the provisions of Mississippi Public School Fair Dismissal Act [Mississippi Code Annotated section 37-9-101 — 113 (1972)]. The District refused to rescind her dismissal and Mrs. Smith appealed to the chancery court. After a trial de novo in that court, as provided in the Act, a decree was entered affirming the action of the Magee Attendance Center. From that decree Mrs. Smith has appealed here. Meanwhile, this Court decided Board of Trustees of Pass Christian Separate School District v. Acker, 326 So.2d 799 (Miss.1976), in which the provision in the Fair Dismissal Act for a Trial De Novo in the chancery court on appeal from the action of a public school administrative body was declared unconstitutional. The present case is controlled by the decision in the Acker case, and authorities there cited, and must be reversed and remanded to the chancery court so that the court may determine from the record made at the administrative hearing whether the action of the school district (1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.

REVERSED AND REMANDED.

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


author: SMITH, Justice,

text:
    Jerry Dean POUNDERS v. STATE of Mississippi.
    No. 49191.
    Supreme Court of Mississippi.
    Aug. 3, 1976.

      Jimmy D. Shelton, Leroy Henderson, Jr., Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Vera Madel Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and WALKER, JJ.
   SMITH, Justice,

for the Court:

Jerry Dean Pounders was convicted of aggravated assault upon a law enforcement officer and sentenced to serve a term of 15 years in the penitentiary, with 5 years suspended during good behavior. He has appealed here.

The episode out of which the prosecution arose began with a severe beating administered to his wife by Pounders. She escaped with their children and ran next door to the house of a neighbor. The neighbor had already called the police. When the police arrived Mrs. Pounders signed an affidavit charging Pounders with having committed the assault and battery upon her. The officers went to the door of Pounders’ home and, having identified themselves to Pound-ers, informed him that he was under arrest. Pounders’ answer was “the first man through that door is a dead-” At this time Pounders was seated facing the door with a rifle across his lap. He was told several times by the officers to throw the rifle down. He refused to do this and responded by shooting at one of the officers. Thereupon the officers returned the fire and in the ensuing exchange of shots, Pounders shot Officer Hall three times. Pounders withstood a siege of some 30 minutes but was finally forced out of the house with tear gas. This was not, however, before Pounders had shot another officer.

Pounders’ defense was insanity. On this issue two psychiatrists testified for the defense and several lay witnesses testified for both sides. On the basis of all of this testimony, (and there was a great deal of it), an issue of fact was created as to whether Pounders had been sane or insane at the time he shot the officers. This issue was properly submitted to the jury by the trial court for determination under instructions drafted and requested by the defense as well as by the State. The action in overruling objections to certain instructions in the lower court is not assigned as error on appeal. The jury returned a verdict finding Pounders guilty of the offense charged.

On appeal, it is argued on behalf of Pounders that the verdict was against the overwhelming weight of the evidence. It is contended that the testimony of the expert witnesses was conclusive upon the issue of sanity and that the testimony of the many lay witnesses was incapable of creating an issue of fact for determination by the jury. A similar contention was rejected in Smith v. State, 245 So.2d 583 (Miss.1971):

The thrust of appellant’s argument on this point is that the jury was bound to accept the expert opinions of the two psychiatrists who testified for him upon the issue of insanity. The opinions of these experts were, of course, competent and relevant to the issue. However, un-contradicted evidence before the jury acquainted the jurors with the conduct of the appellant before, at the time of, and subsequent to the homicide. ... It was the prerogative Of the jury, and it was its duty, to consider all of this evidence. The jury was not deprived of the right to use common sense or of applying the lessons of human experience in resolving the question of whether the appellant had or had not appreciated the nature and consequences of his act and had or had not known that it was wrong. The expert opinions of the psychiatrists were not conclusive upon that issue. (245 So.2d at 585).

We hold that the testimony of the doctors in this case was not so precise or so soundly based or so closely related to the time of the shooting or so exclusive of the possibility that Pounders was sane and had known that in shooting the officers he was doing wrong, as to be conclusive.

It was the jury’s prerogative to consider the testimony of the expert witnesses along with all of the other testimony in the case bearing upon Pounders’ mental condition, including testimony as to his behavior and demeanor, which reasonably tended to show that Pounders had not been insane. The evidence was ample to support the jury’s finding, as reflected by its verdict, that at the time he shot the officers he had been sane and capable of distinguishing right from wrong.

Other points argued have been examined and considered and are without merit.

AFFIRMED.

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


text:
    Willie L. REDD v. STATE of Mississippi.
    No. 49360.
    Supreme Court of Mississippi.
    Aug. 3, 1976.
    Clark, Davis & Belk, Indianola, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Sunflower County; B. B. Wilkes, Judge.

AFFIRMED.


text:
    FORD MOTOR COMPANY v. Dewayne BURTON.
    No. 48730.
    Supreme Court of Mississippi.
    Aug. 3, 1976.
    Thomas, Price, Alston, Jones & Davis, Kenneth A. Rutherford, Jackson, for appellant.
    Gordon, Henry & Mangum, Union, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Newton County; O. H. Barnett, Judge.

REVERSED AND RENDERED.

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


text:
    Loree P. BARNES v. BROOKS MANUFACTURING COMPANY et al.
    No. 48759.
    Supreme Court of Mississippi.
    Aug. 3, 1976.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellant.
    Megehee, Brown & Williams, Pascagoula, for appellees.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Jackson County; Darwin Maples, Judge.

AFFIRMED.


text:
    Thomas E. FRANKLIN v. Charles E. FRANKLIN.
    No. 48692.
    Supreme Court of Mississippi.
    Aug. 3, 1976.
    Rufus Creekmore, Ben Block Jones, Jackson, for appellant.
    Stennett, Wilkinson & Ward, James A. Peden, Jr., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

REVERSED AND REMANDED.

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


author: WALKER, Justice,

text:
    William E. RHODES v. STATE of Mississippi.
    No. 49158.
    Supreme Court of Mississippi.
    Aug. 3, 1976.
    Jones & Hayden, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   WALKER, Justice,

for the court:

The appellant was convicted of assault and battery pursuant to an affidavit filed in the County Court of Jackson County, Mississippi, sentenced to six months in the county jail, and fined $500. That conviction was affirmed by the Circuit Court of Jackson County.

On appeal to this Court, the appellant argues that the cause should be reversed on the ground that the County Court did not have jurisdiction to try appellant, because the justice of the peace court in Beat 5 of Jackson County had first acquired jurisdiction of the alleged crime, and the cause was still pending in that court.

The question of jurisdiction was first raised in the county court. It was stipulated by and between the parties that a criminal affidavit was signed by J. J. Reynolds against the appellant, William E. Rhodes, in the justice of the peace court, District 5, Jackson County, Mississippi, and that Rhodes was tried therein resulting in the jury being unable to agree on a verdict and a mistrial being declared; that subsequent to the mistrial, J. J. Reynolds filed another affidavit against the appellant charging the same alleged crime in the County Court of Jackson County, Mississippi, on November 6, 1974, at a time when the case was still pending before the justice of the peace court, District 5, Jackson County, Mississippi.

The crime of assault and battery is one over which the justice of the peace court has concurrent jurisdiction with the county court and circuit court. Miss. Code Ann. §§ 9-7-81, 9-9-21, 99-33-1 (1972); Smith v. State, 198 Miss. 788, 24 So.2d 85 (1945); Hampton v. State, 138 Miss. 196, 103 So. 10 (1924); Rodgers v. State, 101 Miss. 847, 58 So. 536 (1912); Neely v. State, 100 Miss. 211, 56 So. 377 (1911); Smithey v. State, 93 Miss. 257, 46 So. 410 (1908).

It is well settled by decisions of this Court that, in the absence of fraud or collusion, when concurrent jurisdiction exists in two courts, the court first acquiring jurisdiction acquires exclusive jurisdiction. Smith v. State, supra; Hampton v. State, supra; Rodgers v. State, supra; Neely v. State, supra; Smithey v. State, supra.

Jurisdiction vests in a particular court when an accused is arrested pursuant to a warrant issued by that court. Smith v. State, supra.

However, when one court which has concurrent jurisdiction with another court has acquired jurisdiction but voluntarily relinquishes it by a nolle pros or dismissal of the cause, the other court may proceed. Hegwood v. State, 206 Miss. 160, 39 So.2d 865 (1949); Hampton v. State, supra; Rodgers v. State, supra. In Bass v. State, 159 Miss. 132, 131 So. 830 (1931), and Chandler v. State, 140 Miss. 524, 106 So. 265 (1925), the Court held that the justice of the peace’s attempted dismissal of the case in vacation was void and that exclusive jurisdiction remained in the justice of the peace court and that the second court was “without power to proceed.” (Chandler, supra, at 536, 106 So. at 267.)

We have reached the inescapable conclusion that, under prior authorities of this Court, the County Court of Jackson County did not have jurisdiction to proceed with the prosecution of appellant since the justice of the peace court in District 5 of Jackson County first acquired full and exclusive jurisdiction of the case and had not relinquished that jurisdiction when the county court proceeded to try appellant.

The judgment of conviction and sentence in the lower court is reversed, the cause dismissed and the appellant is discharged.

REVERSED AND RENDERED.

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


text:
    Wilkie TURNER v. STATE of Mississippi.
    No. 49202.
    Supreme Court of Mississippi.
    Aug. 10, 1976.
    Jacobs, Griffith & McIntosh, John Kirk-ham Povall, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

AFFIRMED.

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


text:
    W. F. WHITE v. H. R. MORGAN, INC.
    No. 48750.
    Supreme Court of Mississippi.
    Aug. 10, 1976.
    Rehearing Denied Aug. 24, 1976.
    Self, Bailey & Jordan, Meridian, for appellant.
    Ingram & Matthews, Hattiesburg, for ap-pellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Forrest County; Stanton A. Hall, Judge.

AFFIRMED.


text:
    Johnnie THOMAS v. STATE of Mississippi.
    No. 49176.
    Supreme Court of Mississippi.
    Aug. 10, 1976.
    Tom S. Lee, Forest, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

REVERSED AND THE APPELLANT DISCHARGED.

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

LEE, J., took no part.


text:
    Grady E. HARLAN and Mrs. Emmie Lou Harlan v. Frederick A. ROSS, Jr.
    No. 48773.
    Supreme Court of Mississippi.
    Aug. 10, 1976.
    Dwight N. Ball, Oxford, for appellants.
    Stephen L. Beach, III, Ross & Ross, Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and SMITH, JJ.
   Appeal from Chancery Court, Hinds County; Betty B. Tucker, Chancellor.

AFFIRMED.


text:
    In the Interest of Felicia Lynn BURKS, a minor, Bernice M. Lowery v. Naoma LYDON and Tim Lydon.
    No. 48747.
    Supreme Court of Mississippi.
    Aug. 10, 1976.
    Wilkins, Ellington & Latham, L. C. James, Jackson, for appellant.
    Love & Love, John E. Shaw, Kosciusko, for appellees.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Appeal from Chancery Court, Attala County; Robert Prisock, Chancellor.

AFFIRMED.


text:
    O. B. GOUGH v. MABSCO, INC., a Missouri Corporation.
    No. 48718.
    Supreme Court of Mississippi.
    Aug. 3, 1976.
    Parker, Averill & Winston, Tupelo, for appellant.
    Mitchell, Rogers & Eskridge, Claude F. Clayton, Jr., William M. Beasley, Tupelo, for appellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

The appellant, O. B. Gough, filed suit in the Chancery Court of Itawamba County against Mabsco, Inc., a non-resident corporation not doing business in the State of Mississippi, on an indebtedness of six thousand three hundred forty dollars and sixty-five cents ($6,340.65) and attachments issued against Belmont Manufacturing Company, Inc., and Harvey Chair Company, Inc., both resident corporations, for funds owed by them to Mabsco. The chancellor sustained a motion of Mabsco to dismiss the suit and quash the attachments, holding that the chancery court had no jurisdiction over the case.

The appellant contends (1) that the trial court erred in dismissing the attachments (garnishments) against Harvey Chair Company, Inc., and in declining to permit the case to proceed in rem; and (2) that the appearance of Mabsco was a general appearance and the trial court erred in declining to continue the cause until the next term.

The suit" was filed under Mississippi Code Annotated § 11-31-1 and § 11-31-9 (1972), attachments (garnishments) issued against the resident defendants Belmont and Harvey, and Mabsco was processed under Mississippi Code Annotated § 13-3-57 (1972) [Long Arm Statute], although the bill of complaint failed to aver facts bringing Mabsco within that statute. Publication of summons was not made as provided by § 11-31-9.

The motion to dismiss and quash attachments was heard at the first term after the suit was filed. During the hearing on the motion, the chancellor indicated that it would be appropriate to grant a continuance in order that the complainant could avail himself of additional process (publication). Appellant then moved the court for a continuance in order to process Mabsco by publication, but the motion was overruled.

We are of the opinion that the trial court erred in holding that it had no jurisdiction of the case and in quashing the attachments, which effected a dismissal of the suit.

The garnishee/defendant Harvey Chair Company, Inc., answered the bill and admitted it was indebted to Mabsco, which established jurisdiction in the Chancery Court of Itawamba County, even though the court had no personal jurisdiction of Mabsco.

In Crescent Plywood Company v. Lawrence, 305 So.2d 343 (Miss.1974), this Court said:

“Since the defendant admits that he had effects belonging to the absconding debtor, the attachment and garnishment in chancery established jurisdiction in the chancery court where the effects were admitted to have been in the possession of the defendant.” 305 So.2d at 347.

See also Alabama, Tennessee and Northern Railroad Company v. Howell, 244 Miss. 157, 141 So.2d 242 (1962); and Coahoma County Bank & Trust Co. v. Feinberg, 241 Miss. 381, 128 So.2d 562 (1961).

If the appellant had attempted process by publication for Mabsco and that publication were defective, certainly the chancellor would have permitted appellant to republish and correct the defective process. Likewise here, he should have granted a continuance for the purpose of making publication in order that the cause could proceed in rem.

In this state, a defendant, individual or corporate, may appear specially for the sole purpose of objecting to jurisdiction of the court over his person on the ground that he is not amenable to process. The appearance of Mabsco was a special appearance for that purpose and was proper. Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (1964).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN THE CHANCERY COURT NOT INCONSISTENT WITH THIS OPINION.

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


text:
    Marion BUCHANAN et al. v. Charles Ray STINSON et al.
    No. 48751.
    Supreme Court of Mississippi.
    Aug. 3, 1976.
    Rehearing Denied Aug. 24, 1976.
    Wells, Gerald, Brand, Watters & Cox, A. Jerry Sheldon, Jackson, for appellants.
    Joseph M. Stinson, Tylertown, for appel-lees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

For the Court.

This cloud suit was filed in the Chancery ' Court of Walthall County by complainants, Buchanan and Malvaney (appellants) against defendants and cross-complainants, Charles Ray Stinson and Marilyn F. Stinson (appellees), as to an undivided Vrth mineral interest in certain lands situated in said county. The lower court applied the after-acquired title doctrine, and decreed that title to the subject mineral interest was in the appellees and canceled as a cloud on their title the claims asserted by appellants in their original bill. We reverse.

Evidence before the chancellor established these facts. When he died intestate, Shedrah Taylor (the common source of the > title asserted by the litigants) owned the surface of the land and one-half of the mineral interest. Shedrah’s widow and six children each inherited from him a Vuth interest in the minerals. Two of his children were John W. Taylor and John Wendell Taylor, who each inherited a Vuth interest (totaling Vrth). After Shedrah’s death, all of his children except John Wendell Taylor deeded the surface to his widow, Eula Mae Taylor, for her lifetime, with the remainder to one of Shedrah’s sons, Hollis, but each grantor in that deed dated August 7, 1958, reserved his mineral interest. On September 3,1958, Hollis deeded the land to his wife, Geraldine, subject to Eula Mae’s life estate. On September 4, 1958, a deed of trust was executed by Hollis, Geraldine, and Eula Mae on the land. This instrument included the Vrths surface rights, and Vrth of the minerals consisting of the undivided Vuth mineral interests that Eula Mae and Hollis each inherited from Shedrah. At a foreclosure of the deed of trust, appellant Malvaney purchased the property vesting in himself the Vrth or Vuths mineral interest (formerly owned by Eula Mae and Hollis). Later (May 24, 1960), Malvaney purchased the remaining Vrth surface interest from John Wendell Taylor, who at that time reserved his Vuth mineral interest. On February 14, 1967, appellant Malvaney by warranty deed conveyed the land to the appel-lees (Mr. and Mrs. Stinson). No stated exceptions or reservations were in the warranty deed which effectively conveyed all surface rights and only the Vrth mineral interest which Malvaney had previously acquired.

In 1972 Malvaney was employed by Freedom Oil Company to purchase the mineral interests then owned by Shedrah’s heirs. Apparently, Malvaney was employed because his wife was one of the heirs and it was thought that because of that relationship he could deal with the other heirs who ' were out of state. Malvaney was authorized to pay each heir $25 per acre for leases, or purchase the minerals for $75 per acre. Inexperienced in oil and gas business and without expertise concerning value of leases and minerals, Malvaney stated that he sought advice from appellant Buchanan who advised that the minerals were worth $100 per acre instead of $75. Malvaney then got word to each heir that he had offers to purchase leases at $25 per acre or minerals at $100 per acre. He queried the heirs as to which ones were interested in the offers, and John Wendell Taylor and John W. Taylor responded that they would sell for $100 per acre.

The testimony shows that Buchanan suggested that the deeds from the two Johns (John Wendell and John W. Taylor) be taken in Malvaney’s name, after which, by assignment, record title would be perfected in Buchanan. That procedure was followed whereby the aggregate Vrth mineral interest (Vuth each) of the two Johns purported to vest in Buchanan. Sight drafts were used in the transaction, and Buchanan paid the consideration for the mineral conveyances by arrangements through Deposit Guaranty Bank where he paid the drafts in favor of the two Johns.

Buchanan and Malvaney filed this cloud suit against the appellees (Stinsons) seeking cancellation of any claim of the Stinsons as to the aggregate Vrth mineral interest which the two Johns caused to vest in Mal-vaney who transferred to Buchanan.

This appeal presents one paramount question: Is appellant Buchanan not the owner of the 2/uths or aggregate Vrth mineral rights sold by the two Johns even though Buchanan furnished from his own funds the entire purchase price paid for the mineral rights, but for business reasons took title in Malvaney’s name? The chancellor applied the after-acquired title doctrine together with Mississippi Code Annotated § 89-1-33 (1972), formerly § 843 of our 1942 Code, and dismissed Buchanan’s and Malvaney’s cloud suit. He sustained the Stinsons’ claim by crossbill to the Vrth mineral interest which the two Johns conveyed to Malvaney who transferred to Buchanan.

Crooker v. Hollingsworth, 210 Miss. 636, 46 So.2d 541 (1950), controls. Crooker pointed out that the after-acquired title doctrine is founded upon premises of equitable estoppel. It holds that the doctrine will not be applied absent extremely persuasive circumstances where the parties are equally well informed “as to essential facts, or where the means of knowledge were equally open to them.” (Emphasis added). The opinion in Crooker points out another essential element of equitable es-toppel: The party who “invokes it must have lost something or has been placed at some disadvantage by the conduct of the other party.” An important aspect of the present case is that when he took title to the subject interest in his name, Malvaney knew that he was not purchasing anything for himself. He testified that he told the two Johns “I was not buying this for my own self.” Of additional importance is the fact that when appellee Stinson received the warranty deed from Malvaney in 1967 (approximately five years before the two Johns conveyed their respective Vwth interests in the minerals into Malvaney’s name in 1972), Stinson was aware that he was not acquiring all of the mineral rights. He testified that he knew the former owner, Mr. Harvey, owned one-half of them and that another person “had a small part . maybe a 7th or a 14th.”

As held in Quates v. Griffin, 239 So.2d 803 (Miss.1970), failure of an intending purchaser to investigate the state of the title is negligence on his part, and equity will not “relieve one who is perfectly acquainted with his rights, or has the means of becoming so, by examining the land records or otherwise.” Collier v. King, 251 Miss. 607, 170 So.2d 632 (1965). As stated in 28 Am. Jur.2d Estoppel and Waiver § 80 (1966), one who relies upon an estoppel “must not have been misled through his own want of reasonable care and circumspection . estoppel is denied where the party claiming it was put on inquiry as to the truth and had available means for ascertaining it.” Here it is clear that Stinson, having admitted knowledge that Malvaney owned less than one-half the minerals at the time he deeded the land to Stinson, did not exercise reasonable diligence to learn the truth about the status of the title he purchased from Malvaney. Significant also is the fact that Stinson received all he actually bargained for when he was deeded the property.

The facts show that Malvaney did not intend to gain ownership in himself of the mineral rights of the two Johns, he did not negotiate toward such an end, and did not spend his money for the minerals. Malva-ney was only a conduit through which title of John W. Taylor and John Wendell Taylor to the mineral interest passed. Such a passing of title does not inure to the benefit of a prior grantee.

Unavailing is the assertion of appel-lees Stinsons that the only exception to the after-acquired title doctrine as enunciated in Crooker, supra, is in instances when the original grantee (Stinson here) has full knowledge of the entire status in every detail. However, equitable estoppel will not lie, in the absence of extremely persuasive circumstances, if both parties are equally informed as to the essential facts or where access to such information was equally open to them. Crooker v. Hollingsworth, supra; Meyerkort v. Warrington, 19 So.2d 433 (Miss.1944), withdrawn on other grounds 198 Miss. 29, 20 So.2d 708 (1945). See also, 28 Am.Jur.2d Estoppel & Waiver, § 80 (1966). Therefore, even if it were admitted here that Mr. and Mrs. Stinson did not have knowledge of the prior mineral reservations of mineral interests by She-drah Taylor’s children, the means of such full knowledge (the land records) were equally as open and available to them as to Malvaney. Their failure to inspect such records was negligence. Craft v. Everett, 237 Miss. 360, 115 So.2d 133 (1959); Roberts v. Bookout, 162 Miss. 676, 139 So. 175, 176 (1932); 28 Am.Jur.2d Estoppel & Waiver § 961 (1966).

According to the proof here, Malvaney contracted with Buchanan to act as his agent in acquiring the mineral rights from the two Johns. Malvaney was not purchasing the minerals for himself, and put up no purchase money. Malvaney used ten day sight drafts prepared by Buchanan which were processed through Deposit Guaranty Bank, and funds of Buchanan were used to pay the drafts. It is clear that when he executed the warranty deed to the Stinsons in 1967, Malvaney acted individually for himself alone. In 1972 when the two Johns conveyed to him the subject mineral rights, Malvaney was no more than a conduit or “straw man” through which the title passed. As written by the late Chief Justice Ethridge in 1945:

If a person as an agent for another executes a deed to lands, and he subsequently acquires in his personal capacity as an individual the title to the land, it is generally held that the after-acquired property doctrine does not apply, because he was acting in two capacities: In other words, the title he acquired as an individual does not flow with the deed he executed as an agent for another. The rule would be similar if he were acting as a trustee for another person and subsequently received title to the land as an individual, but not as a trustee. Eth-ridge, After-Acquired Property Doctrine and its Application in Mississippi, 17 Miss. L.J. 153, 158 (1945).

To the same effect is 7 Thompson, Real Property § 3207 at 400 (perm.ed.rev.repl. 1962).

In this very close and well tried title suit, our judgment is that the after-acquired title doctrine does not apply. Accordingly, we must reverse and enter a decree here canceling any claim of appellees to the undivided Vrth mineral interest asserted by appellants.

REVERSED AND RENDERED.

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