text:
    James COOK, Individually and James Cook d/b/a Auto Salvage, Plaintiffs-Appellants, v. ED FRANCIS CHEVROLET, INC., and Ed Francis, Defendants-Appellees.
    No. 6771.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Stafford, Randow, O’Neal & Smith, John C. Pickels, Alexandria, for plaintiffs-appellants.
    Edward A. Kaplan and John B. Honey-cutt, Jr., Alexandria, for defendants-appel-lees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

This case comes before us on appeal from a judgment dissolving a temporary restraining order and denying the issuance of a preliminary injunction against defendants-appellees, Ed Francis Chevrolet, Inc., and Ed Francis (hereafter Ed Francis). The temporary restraining order was issued to prevent appellees from making delivery of a 1978 Corvette “Indy Pace” car to anyone other than appellant, James Cook and James Cook d/b/a James Cook Auto Salvage (hereafter James Cook). As part of the judgment which denied the preliminary injunction, the trial court awarded Ed Francis the sum of $250.00 for attorney’s fees incurred in connection with the dissolution of the temporary restraining order, and denied their claim for damages allegedly sustained as a result of the wrongful issuance of the restraining order. Plaintiff has appealed this judgment, contending that the services of an attorney were unnecessary to dissolution of the order, as the order actually dissolved by operation of law, before the formal judgment was signed and consequently an award to appellees for such fees was improper. Appellant further alleges that he presented a prima facie case in support of the preliminary injunction, and the trial court therefore improperly denied its issuance. Appellees answered this appeal, seeking an increase in the award of attorney’s fees to $1,000.00 and seeking damages for the wrongful issuance of the temporary restraining order.

The issues raised on appeal are as follows:

1. May attorney fees be assessed against a party for the wrongful issuance of a temporary restraining order when the hearing to have the order dissolved takes place on the last effective date of the order and the judgment dissolving it was signed on the day after the order had been in effect for ten days and had therefore expired?

2. Was the award of attorney’s fees in this case adequate?

3. Are appellees entitled to damages for the wrongful issuance of the temporary restraining order?

4. Should a preliminary injunction have been issued in favor of appellant?

The facts of this case, as reflected by the record, can be summarized as follows: Sometime about the middle of January, 1978, James Cook received information that a limited edition Chevrolet Corvette “Indy Pace” ear was being manufactured by General Motors for distribution to Chevrolet automobile dealerships on a one-per-dealership basis. Pursuant to this information, appellant telephoned defendant’s dealership twice to inquire about the possibility of ordering one of these cars. There is discrepancy in the testimony adduced at trial as to who appellant spoke with when he telephoned the dealership and what, if any, agreement was confected between the parties as a result of these conversations. However, following these conversations, appellant sent Ed Francis a check for $500.00, which was dated January 26, 1978. Approximately three months after the check was sent, the $500.00 was returned to Cook, at which time he was informed by appellees that they would be unable to obtain an “Indy Pace” car for him. The record does show that an order was placed by appellee on January 5, 1978 for an “Indy Pace” car on behalf of Mr. George Lyles, and that on February 3, 1978 another order was placed by appellees for the same type of car on behalf of appellant.

On May 5, 1978 appellant filed a petition seeking the issuance of a preliminary injunction, and in due course a permanent injunction, restraining, enjoining and prohibiting appellees from selling or delivering an “Indy Pace” car to anyone other than James Cook. Pursuant to the prayer of plaintiff’s petition a temporary restraining order was issued on May 5,1978 prohibiting sale or delivery of an “Indy Pace” car to anyone other than plaintiff. The rule for a preliminary injunction was set for hearing on the morning of May 15,1978. On May 9, 1978 Ed Francis sought by rule to have the temporary restraining order dissolved and damages for the alleged wrongful issuance thereof. This rule was consolidated for hearing with the rule for a preliminary injunction. At a hearing held on May 15, 1978, the trial court dissolved the temporary restraining order, denied plaintiff’s motion for a preliminary injunction and assessed attorney’s fees in the amount of $250.00 against appellant. Appellees’ prayer for damages was denied by the court.

WERE ATTORNEY’S FEES PROPERLY ASSESSED AGAINST APPELLANT FOR DISSOLUTION OF THE TEMPORARY RESTRAINING ORDER?

LSA-C.C.P. Art. 3608 allows the court to award attorney’s fees for services rendered in connection with the dissolution of a wrongfully issued restraining order. Appellant contends, however, that in this case appellees did not require the services of an attorney to have the order dissolved, as it had already expired by operation of law by the time the judgment dissolving it was signed.

The record indicates that the order in dispute was signed on May 5,1978, and was to be effective for a period of ten days if not extended. The order was therefore in effect through May 15, 1978. LSA-C.C.P. Art. 5059. Clearly, when the hearing to have the order dissolved was taking place, on May 15, 1978, the terms of the order were in force and appellees were enjoined at that time from delivering the car. The court rendered judgment from the bench on the date of the hearing, and signed the judgment the next day. Appellant contends that because of the court’s delay in signing the judgment, the hearing on the motion was unnecessary. We disagree.

Authority cited by appellant in support of his position does not apply to the facts of this case. In those cases, i. e., Lighthouse Life Ins. Co. v. Rich, 343 So.2d 444 (La.App. 3rd Cir. 1977); Lyons v. Campbell, 216 So.2d 895 (La.App. 2nd Cir. 1968), the restraining order sought to be dissolved had already expired and had not been extended as of the date of the hearing. The services of counsel in those cases were unnecessary, as the issue had, by that time, become moot. This is clearly not the situation in this case. We do not believe that the date of the signing of judgment is determinative of whether the assistance of an attorney was necessary at the hearing to have a wrongfully issued restraining order dissolved under LSA-C.C.P. Art. 3608.

In the alternative appellant argues that an award of attorney’s fees for services rendered in connection with the dissolution of a restraining order can only be made when the hearing on the motion to dissolve the order is held exclusively for that purpose. Therefore, appellant argues that attorney’s fees could not be properly assessed. We find no merit to this argument.

LSA-C.C.P. Art. 3608 allows recovery of attorney’s fees for the dissolution of a restraining order whether the order is dissolved pursuant to a pre-trial motion, or following trial on the merits.

WAS AN AWARD OF $250.00 FOR ATTORNEY’S FEES SUFFICIENT?

Appellees contend that an award of $250.00 for attorney’s fees was inadequate in this case. We find, however, that the services of counsel for appellees were rendered under the eye of the court and the trial court was fully able to estimate the value of these services. It is well settled that in making awards for attorney’s fees for the dissolution of a temporary restraining order, the trial court is vested with considerable discretion, the exercise of which will not be interfered with except in a case of clear abuse. Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956); Cain v. Employers Casualty Co., 286 La. 1085, 110 So.2d 108 (1959); Fontenot v. Himel, 124 So.2d 403 (La.App. 1st Cir. 1960); Danzie v. Rutland, 232 So.2d 303 (La.App. 2nd Cir. 1970).

From a review of the record and our appreciation of the work done and the issues involved, we find that the fee fixed by the trial court for services rendered in preparation for and during the hearing on the motion to dissolve the temporary restraining order, although perhaps low, is not inadequate. We do recognize, however, that appellees are entitled to an increase in the amount of attorney’s fees for services rendered by their counsel on appeal. We will award appellees the additional sum of $250.00 for services of their counsel on appeal.

IS APPELLEE ENTITLED TO DAMAGES FOR THE WRONGFUL ISSUANCE OF THE TEMPORARY RESTRAINING ORDER?

The record indicates that the “Indy Pace” car ordered by appellees on January 5,1978 for George Lyles did not arrive at Ed Francis Chevrolet until May 12, 1978. Therefore, while the temporary restraining order preventing appellees from delivering the car to Mr. Lyles was issued on May 5th, such order had no effect on appellees until the car was delivered to them. The hearing on the motions was held on May 15th, only three days after the car became available to appellees for delivery. After May 15th, .nothing prevented Ed Francis from delivering the car to Mr. Lyles. The total effect of the order was to postpone delivery of the car for a period of three days.

Appellees contend that they are entitled to damages because the delay in delivering the “Indy Pace” car caused bad feelings toward them by Mr. Lyles. At oral argument, appellees further contended that inasmuch as appellants were granted a sus-pensive appeal in this matter, Ed Francis has still been unable to deliver the car to Mr. Lyles, and as a result of this delay, the value of the car has diminished. We find no merit in either of these contentions.

An order granting a suspensive appeal from the denial of a preliminary injunction has only the effect of a devolu-tive appeal. Hibernia National Bank v. Mary, 167 So.2d 200 (La.App. 4th Cir. 1964) writs den., 246 La. 876,167 So.2d 826 (1964); Tri-South Mortgage Investors v. Rozands, 354 So.2d 669 (La.App. 1st Cir. 1977). The granting of the suspensive appeal in this case did not operate to suspend delivery of the car to Mr. Lyles. Therefore, in considering appellees’ prayer for damages, we are concerned only with the three day period from May 12th, when the car was delivered to Ed Francis, and May 15th when the temporary restraining order was dissolved and the preliminary injunction denied. We find that the record is void of any evidence of ill feelings on Mr. Lyles’ part toward appellees based upon this short delay in the delivery of his car. On the contrary, Mr. Lyles’ testimony indicates that he was very busy on his farm when the car came into the dealership, and that he was not particularly concerned with picking it up right away. We find that the record does not support appellees’ claim for damages suffered as a result of the issuance of the restraining order or the granting of a sus-pensive appeal from the denial of a preliminary injunction.

SHOULD A PRELIMINARY INJUNCTION HAVE BEEN GRANTED TO APPELLANT?

Appellant contends that he established a prima facie case sufficient to support the issuance of a preliminary injunction, and that the trial court erred in denying him this remedy. We disagree.

On January 5, 1978, an order was placed by appellee with General Motors for a 1978 “Indy Pace” car. The buyer’s name on the order form was Mr. George Lyles. The order number on this form matches the order number which accompanied the vehicle delivered to appellees on May 12, 1978. There can be little doubt that the car, the sale and delivery of which appellant seeks to enjoin, is the car which Ed Francis ordered for Mr. Lyles on January 5, 1978. Mr. Cook testified at trial that he did not contact appellees for the purpose of placing an order for an “Indy Pace” car until some time in the middle of January. His cheek for $500.00 was dated January 26,1978, and the record indicates that on February 3, 1978 an “Indy Pace” car was ordered for Mr. Cook by appellee.

The trial court did not favor us with written reasons for judgment, and did not express an opinion as to whether a contractual agreement had been made by Ed Francis to sell an “Indy Pace” car to appellant in January of 1978. However, by denying the issuance of a preliminary injunction, the trial court apparently found that no agreement had been confected by the parties to sell the “Indy Pace” car which was delivered to appellees’ dealership on May 12, 1978 to appellant. We find that the record supports this conclusion. We therefore find that the court properly denied the issuance of a preliminary injunction preventing ap-pellees from delivering this car to Mr. Lyles.

For the above and foregoing reasons, the judgment of the trial court is amended so as to increase the award in favor of appel-lees for attorney’s fees from $250.00 to $500.00. In all other respects the judgment appealed from is affirmed at appellant’s cost.

AMENDED AND AFFIRMED.

      . LSA-C.C.P. Art. 3608 provides:
      “The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.”


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Spiro A. TALAMBAS, d/b/a Allen Meat Company, Plaintiff and Appellee, v. LOUISIANA STATE BOARD OF EDUCATION (now named Louisiana State Board of Elementary and Secondary Education), Defendant and Appellant.
    No. 6777.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Patrick J. Briney and Thomas L. Halli-gan, Asst. Atty. Gen., Baton Rouge, for defendant-appellant.
    John P. Navarre, Oakdale, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

This is a suit to annul a default judgment. The plaintiff in the original suit was Spiro A. Talambas, d/b/a Allen Meat Company. Named as defendant was “Louisiana State Board of Education (now named Louisiana State Board of Elementary and Secondary Education)”. No answer or other pleadings were filed in response to plaintiff’s petition. On September 19, 1975, judgment by default was rendered in favor of Talambas and against “Louisiana State Board of Education” in the amount of $88,-600.

The present suit was filed by William J. Guste, Jr., Attorney General of the State of Louisiana, to annul the default judgment on the grounds of lack of citation and service of process. After a hearing on the merits, the district judge held the default judgment was valid and dismissed the attorney general’s suit. The attorney general has appealed.

The decisive issue is whether the citation in the original suit is invalid, since at the time it was served on August 26, 1975 the Louisiana State Board of Education had ceased to exist under Article VIII of the Louisiana Constitution of 1974 and the transitional statute, Act 3, § 1, Section 24(B) Extraordinary Session of 1974.

The general facts are that by an instrument dated September 28, 1970, Talambas leased to the Louisiana State Board of Education a food storage building in Oakdale, Louisiana for an initial term of six months at a rental of $1,200 per month. On August 25, 1975, Talambas filed suit against the “Louisiana State Board of Education (now named Louisiana State Board of Elementary and Secondary Education)” alleging that the named defendant owed $63,600 rent and $25,000 damages to the building and equipment, a total of $88,600. Pursuant to this suit, the clerk of court issued citation to “Louisiana State Board of Education, through its ex-officio secretary to the Board, Louis J. Michot, Education Building, Baton Rouge, Louisiana”. The return by the sheriff of East Baton Rouge Parish shows that service of this citation was made August 26, 1975 on Dr. Joseph Kite, an Assistant Superintendent of Education for Louis Michot.

On September 15,1975, Talambas entered a preliminary default, and on September 19, 1975 he obtained a judgment by default against “Louisiana State Board of Education” for the full sum of $88,600.

The attorney general contends that the default judgment is null because the citation on which it was based was directed to “Louisiana State Board of Education”, a state agency which had ceased to exist by the date the citation was served on August 25, 1975. The Louisiana Constitution of 1974 abolished the Louisiana State Board of Education, which had existed under Article 12 of the 1921 Constitution, and which had general supervision and control of all free public schools. Article VIII of the 1974 Constitution establishes five separate boards for the State Educational System: (1) The Board of Regents; (2) Board of Supervisors of Louisiana State University and Agricultural and Mechanical College; (3) Board of Supervisors of Southern University; (4) State Board of Elementary and Secondary Education; and (5) Board of Trustees of State Colleges and Universities.

In chronological order, the following are the pertinent events in this litigation:

(1) On April 20, 1974, the voters of the state adopted the Louisiana Constitution of 1974. By Article XIV, Section 35, the new Constitution was to become effective at midnight on December 31, 1974.

(2)On October 27, 1974, an Extraordinary Session of the Legislature convened to enact the necessary statutes for the transition from the 1921 Constitution to the 1974 Constitution. Pertinent here are the following transitional provisions:

“Act 3, Section 24, Extraordinary Session of 1974: Transitional Provisions: (A) The State Board of Education created by Section 4 of Article XII of the Louisiana Constitution of 1921 shall continue to exercise all power and authority granted to and perform all functions provided for such board by the Louisiana Constitution of 1921 or by law which pertains to elementary and secondary schools, vocational-technical training, post secondary vocational-technical schools and special schools under the jurisdiction of the State Board of Elementary and Secondary Education until the first meeting of the State Board of Elementary and Secondary Education is held as provided in this part.

“(B) The obligations heretofore incurred by the State Board of Education created by Article XII, Section 4 of the Constitution of 1921 in connection with any contract or agreement with respect to elementary and secondary schools, vocational-technical training, and special schools shall be preserved and discharged by the board created in this Section.

“E. The board shall meet on or before the second Monday in January of each year, at other times as fixed by the board or upon call of the president. The first meeting of the board shall be held in Baton Rouge on the call of the governor within ten days after the promulgation of the results of the election for which provision is made in R.S. 17:22(B), or if no such election is held, within ten days after the appointment by the governor of the initial members of the Louisiana State Board of Elementary and Secondary Education and the Board of Trustees for State Colleges and Universities as provided by law. In no event shall the first meeting of the board be held later than May 10, 1975.”

(3) On January 1, 1975, the new Louisiana Constitution of 1974 became effective.
(4) On May 1, 1975, the new Louisiana Board of Elementary and Secondary Education held its first meeting and elected a president, vice president and secretary, thereby abolishing the old Louisiana State Board of Education.
(5) On August 25, 1975, the plaintiff Ta-lambas filed his original suit.
(6) On August 26, 1975, citation was served in the Talambas suit, directed to “Louisiana State Board of Education”.
(7) September 12, 1975 is the effective date of Act 274 of 1975 (LSA-R.S. 17:42) which provides:
“Wherever in Title 17 of the Louisiana Revised Statutes or in any other law with respect to public elementary and secondary schools, vocational-technical and post secondary vocational-technical schools and programs, and special schools under the supervision and control of the State Board of Elementary and Secondary Education, reference is made to the State Board of Education or to the state superintendent of public education, after September 12, 1975, such reference shall mean and refer to the State Board for Elementary and Secondary Education or to the superintendent of education for elementary and secondary education, as the case may be.”

From the above, it is clear that on August 26, 1975, the date the citation at issue was served, the provisions of the Louisiana Constitution of 1974 and of Act 3 of the Extraordinary Session of 1974 were in effect, and there was on that date no Louisiana State Board of Education. Act 274 of the Regular Session of 1975 had not yet become effective. The plaintiff Talambas should have named as defendant and secured citation directed to the State Board of Elementary and Secondary Education, which, on August 26, 1975, was the only state agency responsible for the obligations of the old Louisiana State Board of Education.

LSA-C.C.P. Article 1202 requires that citation contain “the name of the person to whom it is addressed.” The citation in this case named the “Louisiana State Board of Education”, which had ceased to exist on the date the citation was served. The State Board of Elementary and Secondary Education, which came into existence on May 1, 1975, and to which all of the obligations of the old State Board of Education were transferred, Act 3, § 1, Section 24(B) of the Extraordinary Session of 1974, was not cited. During this transitional period discussed above, there may have been confusion and misunderstanding by the personnel of the boards involved as to their respective duties and obligations, which made it essential that the requirements of citation on the correct board be observed, in order that the correct board have proper notice of the suit and of its duty to respond thereto. The lack of proper citation in the present suit may have caused the failure to answer or respond to the original petition by Talam-bas. If so, a serious injustice to the State of Louisiana has resulted.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of William J. Guste, Jr., Attorney General for the State of Louisiana, and against Spiro A. Talambas, d/b/a Allen Meat Company, annulling and setting aside the judgment rendered and signed on the 19th day of September, 1975 in the suit entitled “Spiro A. Talambas, d/b/a Allen Meat Company v. Louisiana State Board of Education (now named Louisiana State Board of Elementary and Secondary Education)”, No. C-436-75 on the docket of the Thirty-third Judicial District Court for the Parish of Allen, State of Louisiana. All costs in the trial court, as well as the costs of this appeal, are assessed against the defendant-appellee.

REVERSED AND RENDERED.


text:
    Betty Bickers POLLOCK, Plaintiff and Appellee, v. POLLOCK ENGINEERING COMPANY, INC., Charles Edward Pollock, and Harold V. Wait, Defendants and Appellants.
    No. 6779.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      John A. Jeansonne, Jr., Richard Kennedy, Lafayette, for defendant and appellant.
    Thompson & Perrin, Michael F. Thompson, Lafayette, for plaintiff and appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

This is a suit for a writ of mandamus. The plaintiff, Mrs. Betty Bickers Pollock, contends she is the owner of one-half of 80 shares of stock of the defendant corporation, Pollock Engineering Company, Inc. The 80 shares are represented by a certificate issued in the name of the defendant, Charles Edward Pollock, plaintiff’s former husband from whom she is now divorced. She seeks a writ of mandamus ordering the corporation and its officers, Charles Edward Pollock, as president, and Harold V. Wait, as secretary, to cancel the stock certificate issued in the name of Charles Edward Pollock and to issue a new certificate for 40 shares in the name of the plaintiff.

After a trial on the merits, the district judge held that the 80 shares of stock issued in the name of Mr. Pollock were owned by the community of acquets and gains previously existing between plaintiff and Mr. Pollock. However, since there has been no conventional nor judicial partition of the community recognizing plaintiff as owner of 40 shares, the trial judge refused to order the corporation or its officers to issue a certificate for 40 shares in plaintiff’s name.

Nevertheless, the district judge ordered the corporation and its officers to recognize the plaintiff as the owner in indivisión with Mr. Pollock of the 80 shares of stock and to afford her all of the rights and privileges accompanying such ownership “including the right to vote in corporation shareholders meetings and to inspect the books of the corporation.” The defendants appealed.

The issue is whether the trial judge erred in ordering the corporation and its officers to recognize plaintiff as the owner of an undivided one-half interest in the 80 shares of stock and to afford her all of the rights and privileges accompanying such ownership, including the right to vote in corporation shareholders meetings and to inspect the books of the corporation.

The trial judge correctly recognized that, upon the dissolution by divorce of the community of acquets and gains, Mr. and Mrs. Pollock became the owners in indi-visión of an undivided one-half interest in all of the community property, including the 80 shares of stock at issue. The district court also correctly reasoned that Mrs. Pollock is not the owner of 40 shares but is, instead, the owner in indivisión of a one-half interest in 80 shares. The trial judge also concluded:

“The petitioner is actually asking this court to order this corporation to partition this community property in kind, and this is something which neither this court nor this corporation has the power to do. A district court can only order the corporation by a writ of mandamus to perform its duties, and a corporation has a duty only to issue a stock certificate in recognition of the ownership of the stock, but it has no duty nor power to partition community property and thereby force a determination of ownership. This is for the parties or the court to determines.”

The district court was clearly correct in these conclusions. LSA-C.C.P. Article 3862 provides that a writ of mandamus may be issued “where the law provides no relief by ordinary means.” LSA-C.C.P. Article 3864 provides that a writ of mandamus may direct a corporation to perform duties required by its charter or bylaws or prescribed by the law, or to recognize the rights of its shareholders. In the present case, the relief provided by law to Mrs. Pollock is to sue for a partition of the community and to seek to obtain a judgment recognizing her as the owner of 40 of the 80 shares in dispute. The corporation and its officers could then be compelled by mandamus to recognize Mrs. Pollock as the owner of 40 shares and to issue a certificate to her for these shares.

Also applicable here is the rule enunciated in Daigre v. Daigre, 230 La. 472, 89 So.2d 41 (1956) that piecemeal partition of the community of acquets and gains is not allowed. In the present case, plaintiff is seeking a piecemeal partition of the community.

The trial judge correctly refused to order the corporation and its officers to transfer 40 shares of stock to the plaintiff.

However, we find the trial judge erred in ordering the corporation and its officers to recognize Betty Pollock as owner of an undivided interest in the 80 shares of stock issued solely in her ex-husband’s name and to afford to her all of the privileges of a stockholder. Under the specific language of the Louisiana Corporation Code, a corporation and its officers are bound to recognize as legal owner only the person in whose name a certificate representing shares of stock is issued. Neither the corporation nor its officers is liable to “any one claiming any interest in, or ownership of, said shares, or any part thereof, by virtue of an undisclosed or latent legal or conventional title or interest therein.” LSA-R.S. 12:601. Additionally, the Corporation Code provides that only shareholders of record on the books of the corporation are entitled to receive dividends, to vote at meetings, or to exercise subscription rights. LSA-R.S. 12:75 and 12:77. Under these provisions, Betty Bickers Pollock is not entitled to any rights of a shareholder.

As alleged co-owner in indivisión of the stock, plaintiff is not without redress of her legal rights. Her remedy is an action against her ex-husband to partition the entire community of acquets and gains which existed between them, including the 80 shares of stock. Daigre, supra.

For the reasons assigned, the judgment appealed is affirmed insofar as it refused to order the corporation or its officers to transfer 40 shares of the stock to plaintiff. Otherwise, the judgment is reversed and set aside. All of the demands of plaintiff are rejected and her suit is dismissed. All costs in the trial and appellate courts are assessed against the plaintiff.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.


author: FORET, Judge.

text:
    Tallie J. PERKINS, Plaintiff-Appellee, v. Mildred Perkins RAY et al., Defendants-Appellants.
    No. 6780.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Voltz & Ware, John R. Hickman, Alexandria, Holt, Wagner & Lee, Charles F. Wagner, Pineville, for defendants-appellants.
    John P. Navarre, Oakdale, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

This is a suit for partition by licitation of three tracts of land involving the heirs of Elee Perkins a/k/a L. E. Perkins and Ida Johnson Perkins. The only issue on appeal is the classification of one of the tracts of land as community or separate property. From a finding by the trial court that it was the separate property of Ida Johnson Perkins, this appeal ensues.

Elee Perkins, Sr. married twice; first in 1903 to Masena Johnson, who died in 1908; of this union there were three children, Mae, Maude, and Parley. In 1909, he married his second wife, Ida Johnson, and of this marriage, nine children were born: Tallie, Verdie, Vernon, L. E., Jr.; Blanche, Lillian, Edlois, Agnes, and Mildred. This action was brought to partition three tracts of land in Rapides Parish along with a wooden frame house belonging to the estáte of Elee Perkins, Sr. situated on leased land, and for the proceeds to be divided among the heirs in various proportions. It is the various proportions of ownership that has created the problems herein.

Tract A as listed in plaintiff’s petition was purchased in 1929 during the marriage of Ida Johnson Perkins and Elee Perkins, Sr. (his second marriage) by a cash deed containing recitation wherein it was stated that Ida Johnson Perkins was purchasing with her separate and paraphernal funds, acquired from the succession of her father, Gilbert Johnson. After trial on the matter, the district court adjudicated the various proportional ownership of the three tracts of land, including that of Tract A, which disposition is before us on appeal.

In its judgment, the trial court held that the statement of paraphernality in the deed created a “presumption that the property is the separate property of the wife”; and then held that the plaintiff had failed to rebut this “presumption”. On appeal, the plaintiff argues (and the defendants agree) that this is not a correct statement of the law. Under Civil Code Articles 2334, 2402, 2405 and the attendant jurisprudence, all property acquired during marriage is presumed to belong to the community. Houghton v. Hall, 177 La. 237, 148 So. 37 (1933); Fleming v. Fleming, 211 La. 860, 30 So.2d 860 (1947).

That the property is in the name of only one spouse and there is a statement of paraphernality in the act of sale, does not change this presumption. Smith v. Smith, 230 La. 509, 89 So.2d 55 (1956); McGee v. Harris, 333 So.2d 440 (La.App. 3 Cir. 1976), writ refused; Milton v. Milton, 278 So.2d 159 (La.App. 1 Cir. 1973); Houghton v. Hall, supra.

While the husband is “estopped by deed” to deny the separate nature of the property, his forced heirs are not so bound. Milton v. Milton, supra; McGee v. Harris, supra; Succession of Broussard, 306 So.2d 399 (La.App. 3 Cir. 1975). In this case the presumption — that such property is community — remains, and the wife and those claiming through or from her, in order to overcome the presumption in favor of the community, must establish three crucial facts:

(1) The paraphernality of the funds;
(2) The administration thereof separately and apart from her husband, and
(3) Investment by her.
Houghton v. Hall, supra, 148 So. at Page 39.

The copy of the deed of 1929 filed in evidence recites that Mrs. Ida Johnson Perkins was acquiring this property “with her own separate paraphernal funds under her own separate administration and control, said funds having been inherited by her from her deceased father, Gilbert Johnson.” We note initially that such a recitation in the act of sale is not sufficient to rebut the presumption in favor of community property. Houghton and Broussard, supra. We also note that the purported source of the funds used to purchase the property, the allegedly deceased Gilbert Johnson, did not in fact die until 1942 (as evidenced by death certificate introduced into evidence). Other than this statement in the deed, defendants could offer no other source of any paraphernal funds that their mother could have used to purchase the property.

As our brothers of the First Circuit stated in a similar situation in Milton, supra:

“It is our opinion that the plaintiff has failed to prove by strict, clear and legally certain proof that she did in fact have separate funds with which to buy the property. Self-serving, totally uncorroborated evidence of the nature adduced by Appellant will not suffice. Cameron v. Rowland, 215 La. 177, 40 So.2d 1; Prince v. Hopson, 230 La. 575, 89 So.2d 128.”

We thus hold that the defendants have failed to meet their burden of proof and have not overcome the presumption in favor of the community.

The judgment of the trial court is reversed in part, and amended to allocate the same percentages in Tract A:

(East half of the northwest quarter of the northeast quarter (E V2 of NW Vi of NE lU) of Section 20, Township 1 South, Range 3 West, LESS 1 acre sold, containing 19 acres more or less.),

as to the other property of the community existing between Ida Johnson Perkins and Elee Perkins, Sr. to-wit:

Maude Ray 1/22
Heirs of Parley Perkins 1/22
Tallie J. Perkins 10/99
Yerdia Perkins Maride 10/99
Vernon M. Perkins 10/99
L. E. Perkins, Jr. 10/99
Blanche Perkins Thompson 10/99
Lillian Perkins Paugh 10/99
Edlois Perkins Stalsby 10/99
Agnes Perkins Potts 10/99
Mildred Perkins Ray 10/99

All costs of the trial court and of this appeal are assessed against all parties to this suit in the proportions that their interest in the property in question bears to the whole.

REVERSED IN PART, AMENDED IN PART, AFFIRMED IN PART, AND RENDERED.

      . Mae Perkins died, without issue.


author: WATSON, Judge.

text:
    Joseph W. BEARDEN, Plaintiff-Respondent, v. LEON C. BREAUX TOWING CO., INC., et al., Defendant-Relators.
    No. 6896.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Writ Refused Jan. 26, 1979.
    Hall, Lestage & Lestage, David R. Les-tage, DeRidder, for defendants-relators.
    Stephen E. Everett, Alexandria, for plaintiffs-respondents.
    Before WATSON, GUIDRY and CUTRER, JJ.
   WATSON, Judge.

Plaintiff, Joseph Bearden, instituted this action for workmen’s compensation benefits under LSA-R.S. 23:1021, et seq. against his employer, Leon C. Breaux Towing Co., Inc., and its insurer, Travelers Insurance Company. Bearden alleged that he suffered injuries while working as captain of a vessel operating on the Intracoastal Canal. The defendants filed exceptions of, among others, no subject matter jurisdiction and no cause of action; alleging that plaintiff’s federal remedy was exclusive. The trial judge overruled the exceptions, holding in effect that plaintiff had a cause of action under the Louisiana Workmen’s Compensation Act. Utilizing the “savings to suitors” clause , the trial court held that the Jones Act provided plaintiff with an option to maintain an action for state compensation benefits. Doubting the validity of this ruling, we granted writs under our supervisory jurisdiction. Article V, § 10, Louisiana Constitution of 1974.

Bearden was employed by Breaux Towing as the captain of one of their seagoing tows, the “Eileen B”. All parties agree that Mr. Bearden is classified as a “seaman” under the Jones Act. It is further undisputed that plaintiff suffered a stroke, rendering him disabled, while he was piloting the “Eileen B” upon navigable waters of the United States.

The sole issue presented to this court is whether a “seaman” has an optional supplementary state workmen’s compensation cause of action for an injury which occurred within the scope of his employment on navigable waters.

The historical development of our national maritime law has greatly obfuscated the proper resolution of this issue. The landmark decision dealing with the availability of state compensation laws to maritime employees is the old but still valid case of Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). In Jensen, a worker was fatally injured on the gangway between ship and shore. He was not covered under the Jones Act or, at that time, any other federal laws. An attempt to invoke state workmen’s compensation was constitutionally challenged as being beyond the power of the state to provide. The United States Supreme Court held that state workmen’s compensation laws conflicted with general maritime laws and were therefore inoperative on the navigable waters of the United States. In reaching such a decision, the court concluded that the statutory “savings to suitors” clause did not extend to workmen’s compensation remedies since this remedy was “of a character wholly unknown to the common law . [and] not saved to suitors on the grounds of exclusive jurisdiction.”

After Jensen, Congress amended the “savings to suitors” clause by adding a phrase purporting to preserve “to claimants the rights and remedies under the workmen’s compensation law of any State.” 40 Stat. 395 (1917). This attempt to legislatively overrule Jensen was thwarted, however, by Knickerbocker v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920), where the United States Supreme Court found the amendment to be unconstitutional. This further made it clear that even Congress could not negate the exclusive grant of maritime jurisdiction by attempting to delegate its powers to the states. Appropriately, the Louisiana Supreme Court, in Apperson v. Universal Services, 153 So.2d 81 (La. App. 1st Cir. 1963), recognized that the “Courts, no less than the Congress, are restricted by the Constitution of the United States.” 153 So.2d 86. If Congress cannot constitutionally bring seamen within the scope of state workmen’s compensation laws, neither can the Louisiana legislature or courts.

The Jensen decision left longshoremen injured on the landward side of the pier with a possible state workmen’s compensation remedy, but in the absence of federal legislation, not covered when they stepped from the pier onto the gangplank. This gap at the gangplank was statutorily cured in 1927 by amendments to the Longshoreman’s and Harbor Worker’s Compensation Act (LHWCA). In Davis v. Dept. of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, the Supreme Court espoused the “Twilight Zone” doctrine which enabled an injured waterfront worker to elect between the federal LHWCA and the state remedies in cases where there was much doubt as to which set of laws would apply. The court did not apply this concept to cases arising under the Jones Act.

In Beadle v. Mass. Bonding & Ins. Co., 87 So.2d 339 (La.App. 1st Cir. 1956), the First Circuit found “no sound reason in general theory why the ‘twilight zone’ approach should be limited to longshoremen” (87 So.2d 342) under the LHWCA. Applying this reasoning, the court went on to find that a Jones Act seaman could recover under either state or federal remedies. Later, the same circuit overruled Beadle in Apper-son v. Universal Services, supra. The court in Apperson held that when a “seaman” is petitioning for compensation it is:

“. . . impossible not to conclude the redress for such injury is exclusively vested by the Constitution of the United States in the federal courts and Plaintiff must seek redress under the Jones Act. Clearly there is no twilight zone in which Plaintiff may seek relief under our workmen’s compensation law for the factual situation presents an issue where in the Constitution of the United States obliterates the right of the state to grant a seaman injured within the scope of his employment relief under the State Workmen’s Compensation Act, making exclusive the Federal Courts the forum to Plaintiff.” 153 So.2d 86.

The rationale in Apperson for finding the “twilight zone” doctrine inapplicable to injuries under the Jones Act was obtained from Jensen, Knickerbocker and Ellis v. Travelers Ins. Co., 241 La. 433, 129 So.2d 729 (1961). Although the matter before the court in Ellis involved a jurisdictional question under the LHWCA, recovery was again plagued by the Jensen doctrine. An extensive review of state and federal jurisprudence there led the Louisiana Supreme Court to conclude that the Jensen doctrine had not been overruled by Davis, but that its recognition of possible concurrent jurisdiction in the “twilight zone” was simply a jurisprudential exception to Jensen. Nevertheless, the court in Ellis felt that when the injury actually occurred on the vessel, the federal remedy would preempt a claim under state law.

This latter portion of the Ellis holding was later reversed. Respondent urges that these subsequent modifications of Ellis by Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1961) have substantially emasculated the rationale of Ellis, and returned a breath of life to Beadle. We disagree.

Even though the basic holding of Ellis was modified, Jensen continues to remain valid with recognition of the “twilight zone” exception for longshoremen, but not seamen. Calbeck simply recognized that the “twilight zone” concept allowed coverage under the LHWCA for all longshoremen injured on navigable waters, whether or not that particular injury was constitutionally within the jurisdictional reach of the state as well. In fact, the necessary reasoning was brought about by the Jensen line of cases. The obvious implication is that Jensen is still valid and must be contended with.

In the recent case of Wixom v. Travelers, 357 So.2d 1343 (La.App. 4th Cir. 1978), the court held that an ironworker longshoreman injured while repairing a ship on navigable waters had an exclusive federal remedy. There it was noted that the court was not presented with a close case which called for the application of the “twilight zone” concept but rather a crystal-clear, pure maritime question. As in Wixom, the case presently before this court presents a case which is wholly maritime.

The United States Supreme Court likewise sustained the continuing validity of Jensen in Askew v. American Waterways, 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973). The court noted that although Jensen had been limited by subsequent holdings of that court, Jensen and its progeny remain to mark isolated instances where state law must yield to the needs of a uniform federal maritime law. See Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 and Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).

Conclusion

Since the line drawn by Jensen still remains, and because we are dealing with a “seaman” who may sue under the Jones Act, it is constitutionally mandated that plaintiff Bearden may not have the benefits of the Louisiana Workmen’s Compensation Act. Accordingly, the trial court erred in failing to dismiss Bearden’s workmen’s compensation claim. This particular case presents a situation which is wholly maritime, far removed from any possible “twilight zone,” even if such a zone exists for “seamen.” The trial judge also erroneously found the “savings to suitors” clause applicable to plaintiff’s attempt to obtain state compensation benefits when it applies only to other more traditional state remedies.

For the reasons assigned, the writs are made absolute, the exception of no subject matter jurisdiction and the exception of no cause of action are sustained and plaintiff’s workmen’s compensation petition is dismissed. All costs of this proceeding are assessed against plaintiff-respondent.

WRITS MADE ABSOLUTE; EXCEPTIONS SUSTAINED AND PETITION DISMISSED.

      . The meaning of the clause, found in 28 U.S.C. 1333, is obtained by construing it with the Jones Act, 46 U.S.C. 688, saving a right to trial by jury for “damages at law” to seamen who suffer personal injury in the course of their employment.

      . The stroke occurred on the Intracoastal Waterway, mile 230, as the vessel was approaching the Grand Lake bridge in Calcasieu Parish, La.

      . Even though the pertinent statutory provisions (cited above in footnote 2) now set forth a somewhat different wording than that found in § 9 of the Judiciary Act of 1789 (the Act which Jensen was construing), a full reading of the current statutes show that the present intent of Congress is to carry forward the same “common law” type options that were explicitly saved in the Judiciary Act. See the Official Historical and Revision Notes under 28 U.S.C. 1333.

      .The court felt that the object of the Constitution’s grant of maritime jurisdiction (in Art. Ill, § 2, cl. 1) to the national sovereign “was to commit direct control to the federal government, to relieve maritime commerce from unnecessary burdens and disadvantages incident to discordant legislation, and to establish as far as practicable, harmonious and uniform rules applicable throughout every part of the Union.” 40 S.Ct. 441.

      . For further elucidation of the development of the LHWCA as a separate federal remedy, see: Northeast Marine Terminal v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977); and Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La. 1976).

      . Also, see Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976), where our Supreme Court traces the history of state workmen’s compensation laws as they relate to federal maritime remedies, and in the course of that discussion must contend with the current validity of the Jensen decision.


author: REDMANN, Judge.

text:
    Mrs. Calvin J. PEPITONE et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al.
    No. 9939.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Jerome Friedman, Metairie, for plaintiffs.
    Gerard M. Dillon, Dillon & Cambre, New Orleans, for defendant Fireman’s Fund Ins. Co.

      John J. Hainkel, Jr., Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendant Allstate Ins. Co.
    Before REDMANN, GULOTTA . and GARRISON, JJ.
   REDMANN, Judge.

Two defendants move dismissal of plaintiff’s appeal as untimely within La.C.C.P. 2087 because not perfected within 60 days of a minute entry reading “Motion for new trial — DENIED. Judg[ment to] be submitted] by Mr. Dillon [counsel for one defendant]. Judgfment to] be submitted] by Mr. Hainkel [counsel for another defendant].” (Bracketed material supplied.)

We deny the motions to dismiss because, as in Green v. Love, La.App. 4 Cir. 1974, 295 So.2d 65, the trial judge did not deny the motions for new trial as of the date of the minute entry. He merely indicated that they “should be denied” and instructed counsel for the prevailing parties defendant to prepare judgments denying them.

Defendants note that Green’s minute entry recited that the matter was “continued” for preparation of judgment by counsel, whereas ours reads “denied.” But it is the judge, not the minute clerk, who decides motions. The characterization “denied” or “continued” is evidence of what the judge did but it is merely the minute clerk’s description and does not take precedence over the judge’s action. Here, “denied” is an inaccurate description of what the judge did. The transcript of the hearing shows that the judge did not decide the matter by simple minute entry as he could have; had he done so, the time to appeal would indeed have run from that day and thus appeal would have been too late; Doolan v. Doo-lan, La.App. 3 Cir. 1977, 349 So.2d 980. Instead, although the trial judge then reasoned that the motions “should be denied,” he elected to sign judgments denying them, and no “refusal” within C.C.P. 2087 occurred until the judgments of refusal were signed. This appeal was within 60 days of that signing and it is therefore timely.

Motion denied.


text:
    Cynthia MIRAMBELL et al. v. LUCIEN J. CARUSO, INC., et al.
    No. 10011.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Clydia A. Davenport, New Orleans, for plaintiffs.
    Paul V. Cassisa, Joseph S. Palermo, Jr., Bernard, Cassisa, Babst & Saporito, Metair-ie, for defendant First Nat. Mortgage Corp.
    Daniel J. Caruso, Alford & Caruso, New Orleans, for defendant Lucien J. Caruso, Inc.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   REDMANN, Judge.

One of two defendants pleaded an exception of prescription and the trial court by mistake maintained the plea as to both on February 15,1978. At 11:07 a. m. February 23 the second defendant for the first time filed an exception of prescription, apparently in ignorance of the February 15 judgment. (That plea of prescription did not make the present brief’s assertion that defendant filed its plea “recognizing that the judgment of February 15, 1978 was void because prescription cannot be raised by the court.”) Also on February 23, at 4:57 p. m., plaintiffs moved for new trial complaining, inter alia, about the dismissal of the second defendant, which had not pleaded prescription prior to the February 15 judgment.

Both the rule for new trial and the second defendant’s exception of prescription were set for trial March 10. The record does not reflect the disposition of the rule for new trial, although both plaintiffs and the second defendant agree that that motion was [orally] denied. The record does contain a judgment dated March 28, on the second defendant’s counsel’s stationery, which simply maintains the second defendant’s exception of prescription while making no reference either to the judgment of February 15 (which itself maintained such an exception in respect to the second defendant) or to the application for new trial in respect to that judgment.

On May 5 plaintiffs moved for appeal from the judgment of February 15 “and from the motion for new trial denied on the 10th day of March, 1978.”

The second defendant now moves dismissal of the appeal, as to itself, on the ground that this court did not obtain “jurisdiction” of that aspect of the case because no appeal was taken as to the March 28 judgment.

We deny the motion to dismiss. Although the parties disagree as to what the trial judge’s oral instructions (not in the record) were on March 10, the February 15 judgment dismissed the second defendant and the March 10 action by the trial court refused to reinstate the second defendant. The evident intent of this appeal was to obtain reversal of the dismissal of the second defendant (as well as of the dismissal of the first). Plaintiffs’ motion for appeal included the March 10 ruling that later entered into a March 28 judgment, and gave the second defendant ample notice that plaintiffs were continuing the pursuit of the second defendant. The case is thus comparable to those in which an appeal purporting to be from the judgment denying a new trial was held to constitute an appeal from the principal judgment; Kirke-by-Natus Corp. v. Campbell, 1967, 250 La. 868, 199 So.2d 904; Fruehauf Trailer Co. v. Baillio, 1968, 252 La. 181, 210 So.2d 312; Smith v. Hartford Acc. & Indem. Co., 1969, 254 La. 341, 223 So.2d 826.

Motion denied.


author: BROOM, Justice, for the Court:

text:
    Richard Gerald JORDAN v. STATE of Mississippi.
    No. 50551.
    Supreme Court of Mississippi.
    Nov. 22, 1978.
    Rehearing Denied Jan. 24, 1979.

      Levi, Denham & Russell, Rhett R. Russell, Ocean Springs, for appellant.
    A. P. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   BROOM, Justice, for the Court:

Capital punishment was ordered at Richard Gerald Jordan’s trial upon an indictment charging him with murder while engaged in the commission of the crime of kidnapping. The Circuit Court of Jackson County, Mississippi, tried the case, venue having been changed from Harrison County. Mrs. Edwina Marter was the victim of Jordan’s offenses committed on January 13, 1976, and his appeal asserts a number of grounds for reversal. We affirm.

Originally Jordan, a twenty-nine year-old white man, was prosecuted, convicted, and sentenced to death at a trial which ended July 21, 1976. He filed a motion for a new trial which was continued for a time and then sustained on October 27, 1976, for retrial under the Jackson v. State, 337 So.2d 1242 (Miss.1976) guidelines. At retrial Jordan was again sentenced to death. Jordan now prosecutes this appeal, represented by court appointed counsel who vigorously and astutely defended him below.

On or about January 10, 1976, in Baton Rouge, Louisiana, Jordan traded a shotgun for a 38-calibre revolver. Then he came to Gulfport, Mississippi, and obtained lodging at Twin Star Motel where he registered as “Jack Wilson.” His signature “Jack Wilson” was shown by an expert to have been made by the same person who wrote a sample of writing known to be Jordan’s. With kidnapping in his mind, and using the fictitious name of “Jack Wilson,” Jordan called Gulf National Bank and expressed a desire to speak to the commercial loan officer. He was referred to Mr. Marter, whose wife was soon to be Jordan’s victim. Perusal of the telephone directory revealed to Jordan only one Gulfport listing of the name “Marter” (the family Jordan made part of his plot). Having obtained the Mar-ter address from the directory, Jordan drove by the Marter residence where several ears were parked, including a Mercedes and a sports car. After all but one of the cars was driven away, Jordan dialed the Marter residence telephone number and heard a female’s (Mrs. Marter’s) voice answer. Then he decided to make his move.

Dressed in a sport coat, tie and knit pants, and carrying a manilla folder, Jordan went to the Marter residence. He rang the doorbell and was greeted by Mrs. Marter whom he told that his electrical company had received information of defective circuit breakers in the area which he was investigating. Mrs. Marter admitted him inside, whereupon he kidnapped Mrs. Mar-ter at gunpoint and took her away, leaving her three-year-old son asleep in the house. At his command, she drove him out into the sparsely settled DeSoto National Park wooded area. They traveled down a logging road to where he ordered her out of the car, telling her that she would stay there with his partner until he obtained money from her husband, after which he would release her. She became extremely fearful when she discovered there was no partner there, and as she ran for her life Jordan (a self-described marksman) shot her dead by firing a bullet from the revolver into the back of her head. He then went to a telephone and called Mr. Marter at the bank. Demanding $25,000, Jordan stated: “We have your wife . . .” and gave Marter directions how to deliver the money up on Highway 49. Marter quickly obtained the money, but his efforts to drop it where directed failed because he did not find the coat (beside the highway) upon which he was supposed to drop the money. Being fearful on account of two vehicles following Marter, Jordan had decided against putting out the coat.

Jordan then took the revolver (murder weapon) and threw it into the Big Biloxi River, from which it was later recovered after he revealed its location. Before Mr. Marter again attempted to deliver the money as directed by a second telephone call from Jordan, the money was serialized and microfilmed with FBI officers then actively investigating the matter. During this second telephone conversation (about 9:00 a. m., January 13) between Jordan and Mr. Marter, Jordan assured Marter that his wife was all right, and demanded that Mar-ter drop the money on Interstate U.S. Highway 10. Marter proceeded as Jordan directed; this time he found the coat and dropped the money on it. Two officers, Deputy Sheriff Larkin Smith and FBI Agent Shepherd, having been made aware of what was going on, were positioned near the scene of the drop and saw Jordan place a coat there. Soon they saw him pick up the money, after which they gave chase at high speed. During the chase, Jordan rammed his car into the vehicle of the officers, running them off the road. They shot at his receding car, but Jordan continued his flight although his car was rendered partially disabled when, in the ramming episode, a bent fender came in contact with a tire. Farther on, Jordan abandoned his vehicle at a shopping center, hid the money in the woods, went to another shopping center, and, at a T. G. & Y. store, purchased a red jump-suit which he donned before he left the store. He got a taxi at the shopping center and told the driver to take him to Twin Star Motel. Not knowing that Jordan was the man for whom a large search was under way, the taxi driver told Jordan that roadblocks were up and that the officers were looking for someone. En route to the motel, the taxi was stopped and an officer identified Jordan from a picture already obtained by the FBI. The officer arrested Jordan and turned him over to the FBI. That afternoon (January 13, 1976) Mrs. Marter’s body was found. On the next day a diver from the Gulfport Fire Department retrieved the murder weapon from the river.

A significant portion of the evidence upon which Jordan was convicted were statements which he made against his interest, which the state placed into evidence over his objection. Jordan did not testify except as to matters taken up outside the jury’s presence. He was arrested January 13, 1976, and charged with Mrs. Marter’s murder, after which he confessed to FBI Agent Watts and, later the same day, to Harrison County law officer Allbritton. Jordan argues that his confession to Allbrit-ton was obtained and used against him in violation of his constitutional right to counsel and privilege against self-incrimination. By motion to suppress, he unsuccessfully sought to have excluded his confession made to Allbritton.

Facts pertinent to the suppression motion show that Jordan was arrested at the roadblock in the early afternoon of January 13, 1976, and taken to the FBI offices. En route, Agent Tollison advised Jordan of his rights and stated that as he read the rights to Jordan, Jordan recited them “along with me.” At approximately two o’clock that afternoon, another FBI agent (Frank Watts) again advised Jordan of his rights, which Jordan stated he understood and then executed a written waiver. Up to that time Jordan made no request for counsel.

After first denying having anything to do with the kidnapping or murder, Jordan confessed (to Watts) most of his actions connected with the kidnapping and murder. He admitted that he made ransom demands by telephone, and he also furnished a map, which he made in his own handwriting, of the area where he left Mrs. Marter’s corpse. His oral confession described in considerable detail his actions of January 12 and 13. Other inculpatory information which he gave at that time included his accompanying the law officers as he retraced his actions. He showed them the location of the following items: the clothing he had hidden after wearing it the day before, the weapon, the ransom money, and the automobile which he used and abandoned in the shopping center. Afterward, he was put into the custody of Harrison County Sheriff Hobbs.

Then at about 4:45 p. m. of that day, Jordan was carried before the county judge who advised Jordan that he was charged with a capital offense. Jordan expressed a desire to delay any proceedings until counsel was appointed for him, whereupon Honorable Rhett Russell (not present at these proceedings) was appointed as his counsel. Prior to the appointment of counsel, at about 2:30 p. m., one Allbritton (an investigator of the Harrison County Sheriff’s Department) was given charge of the case. At about 5:30 p. m., Officer Allbritton visited Jordan at the county jail, fingerprinted and photographed him, and began to interview him, not knowing that Jordan had requested counsel or that one had been appointed. At about 6:00 p. m., Jordan was advised of his rights by Officer Sullivan, who meanwhile had arrived and who tape-recorded Jordan’s statement (a typewritten transcript appears in the record), which amounted to a confession, the content of which was substantially the same as the one given FBI Agent Watts. Throughout all of the interview, according to Allbritton’s unequivocal testimony, Jordan made no indication that an attorney had been appointed for him and made ho request for counsel during the interview. After a transcript of the interview was made, Jordan refused to sign it. It is uncontradicted that Jordan had been advised of his rights at least five times prior to his interview with Officer Allbritton, and understood his rights. At the hearing of his motion to suppress, Jordan testified: “I feel sure that I did tell him (Allbritton) that I had an attorney appointed for me.” Nevertheless, his statement, recorded with his knowledge, contains no indication that Jordan ever mentioned any attorney on the tape, and Jordan admits that Allbritton made no inducements to him such as promises, threats, or intimidations in exchange for any statement. The critical issue is: WHEN AN ACCUSED PERSON, WHO HAS REQUESTED COUNSEL AND FOR WHOM COUNSEL HAS BEEN APPOINTED, IS INTERVIEWED BY A LAW OFFICER WHO HAS NO KNOWLEDGE OF SUCH REQUEST FOR OR THE APPOINTMENT OF COUNSEL, AND IN SUCH A SITUATION THE ACCUSED, AFTER BEING PROPERLY ADVISED OF HIS RIGHTS, VOLUNTARILY MAKES INCRIMINATING STATEMENTS, MAY SUCH STATEMENTS BE ADMITTED INTO EVIDENCE?

A facet of the case not raised by Jordan as error is noted by the state concerning a threat allegedly made by FBI Agent Watts that he would throw Jordan out the window of a building. The state’s brief has the chronology and context of the record out of order in this respect, but correctly asserts that there is no reversible error in this regard. On direct examination Watts generally denied the threat, after which Jordan gave specific details of the alleged threat which he said was in the presence of Watts, Hargrove, Payne and another. Then, contrary to the state’s brief, Watts was recalled as a witness and categorically denied the threat in specific detail as did the other witnesses present on the occasion in question, in accord with Agee v. State, 185 So.2d 671 (Miss.1966).

The essence of Jordan’s argument here is his contention that: “Evidence obtained by interrogation, after a request for counsel, could not be used” against him. Jordan’s argument is based in the main on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). Jordan cites Hoiifield v. State, 275 So.2d 851 (Miss.1973), which held that where a suspect requests counsel, his request must be complied with prior to interrogation. However, the facts of both Hoiifield and Miranda are different from the unique facts of the present case, and no case has been cited precisely on point with facts just like the facts of this case. In deciding here as to admissibility, we must look to the totality of the evidence. Indeed the evidence does establish that Jordan was of considerable intelligence, able to recite his rights when read to him by one of the officers, and twenty-nine years of age, and no suggestion was made that he was illiterate or not able to read, write, and comprehend his rights. The vocabulary and sentence structure used by Jordan in the record establishes that he was mentally alert and quite articulate. The overriding fact here is that Jordan was advised of his rights at least four times before he voluntarily made his inculpatory statements to Allbritton. By his own testimony he said that Allbritton asked him if he understood his rights and that he responded, “Yes.”

Under Miranda, supra, the law is that where the accused has requested an attorney, the results of any subsequent interview or interrogation may be admitted into evidence only after the prosecution has met its heavy burden to establish that the accused “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel” (384 U.S. at 474-75, 86 S.Ct. at 1628, 16 L.Ed.2d at 723-24). Although in a concurring opinion in Michigan v. Mosley, 423 U.S. 96, 109, 96 S.Ct. 321, 329, 46 L.Ed.2d 313 (1975), Justice White seemed to indicate that Miranda created “a per se rule against further interrogation after assertion” of the right of an accused to counsel, two years later Nash v. Estelle, 560 F.2d 652 (5th Cir. 1977), held that an accused suspect may, after requesting counsel, “knowingly and intelligently” waive his right thereto. Subsequently, in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the United States Supreme Court made it clear that an accused can voluntarily, knowingly and intelligently waive his right to counsel at an interrogation which occurs after counsel has been appointed, provided the prosecution has adequately carried its heavy burden to show that the waiver was knowingly and intelligently made.

Abston v. State, 361 So.2d 1384 (Miss.1978), dealt with a similar legal question, but the instant case is distinguishable on the facts. Abston, an illiterate, requested an attorney, the questioning ceased, and shortly thereafter another officer, apparently unaware that Abston had asked for an attorney, was called in. The officer advised Abston of his rights and began questioning him, when Abston again requested a lawyer. Thereupon, he ceased interrogating Abston and attempted to reach an attorney several times by phone, but before the attorney arrived Abston had revealed the location of the body of the victim of his homicide. We held this evidence to be inadmissible. Our decision in Abston, however, is not authority for us to hold on the dissimilar facts of the instant case that the lower court erroneously overruled Jordan’s motion to suppress.

The opinion in Absten, by Chief Justice Patterson, states “that a waiver is possible after a request for counsel” but waiver of Abston’s rights was not established by the record. Absten cites several federal cases indicating that admissibility of confessions made after an attorney has been requested depends upon the factual situation. After considering Abston’s “illiteracy, his repeated requests for an attorney, his first talk with his attorney, the assurance the attorney would be there within the hour, the cessation of interrogation and shunting to another officer, unaware of the request, for further interrogation,” we held that “these circumstances do not meet the requirement of a knowing and intelligent waiver.”

In the present case there is no indication of illiteracy on the part of Jordan but, to the contrary, the record here shows that he was a very intelligent individual who not only understood but could recite his rights. There is no indication of any deliberate “shunting” of Jordan from one law officer to another. Equally important is the fact that the circumstances surrounding Jordan’s second confession (the disputed one) are quite different from the circumstances in Absten. Prior to requesting counsel, Jordan had already admitted to FBI Agent Watts everything which he subsequently admitted to Allbritton. Before the controversial confession to Allbritton and before requesting counsel, Jordan had already voluntarily directed the officers to the place where Mrs. Marter’s body was found, and pointed out other locations where critical items of physical evidence were located. By the time Jordan gave Allbritton the controversial confession attacked by the motion to suppress, he had been advised of his rights at least five times, had acknowledged that he understood them, and had even recited them as they were related to him. Moreover, both the tape recording and the transcript of the second confession show that Jordan did not mention that he had an attorney or wanted one. In this confession he acknowledged that he had neither been promised anything in exchange for his statement, nor threatened or intimidated. The facts here show that in making his statement to Allbritton, Jordan knowingly and intelligently waived both his right to counsel and his privilege against self-incrimination. ’

It is also clear that the disputed confession made by Jordan to Allbritton was merely cumulative of and not in any significant manner different from that to which he had already confessed to the FBI agent, Watts. By receiving the disputed confession, the jurors did not receive any evidence incriminating Jordan that was not already in evidence. Upon the record, we cannot say the trial court erred in overruling the motion to suppress the disputed confession or in admitting its contents into evidence.

Jordan’s mental condition and competency to stand trial and assist in his defense is the next proposition presented. At his request Jordan was examined at Gulf Coast Health Center in Gulfport, but subsequently he moved to be examined at Mississippi State Hospital. His proof in this regard includes the testimony of Dr. Clifton Davis, a psychiatrist who diagnosed Jordan as a “soeiopathic personality” but capable of understanding the charges against him and able to assist counsel. Dr. Davis stated that Jordan might give or withhold information casting himself in the best light. On cross-examination Dr. Davis stated that Jordan gave no indication that he could not distinguish right from wrong or could not assist counsel. Counsel for Jordan testified to the contrary — that Jordan was not of sound mind and uncooperative. The doctor stated that in his opinion Jordan “is capable of distinguishing right and wrong and of assisting counsel.” Dr. Davis also testified that Jordan freely talked with him and boasted “about how he thought he was going to beat the rap — ” and claimed to have a tested I.Q. of 145. In light of the testimony of Dr. Davis, the psychiatrist called by the defense, we cannot say that the trial court erred in refusing to order further psychiatric examination of Jordan. The testimony accepted by the trial court failed to indicate a reasonable probability that Jordan was incapable of making a rational defense. Hill v. State, 339 So.2d 1382 (Miss. 1976), is not applicable because in it a psychiatrist recommended that the defendant be further examined at Mississippi State Hospital.

Thirdly, Jordan argues that the trial court erred in overruling his motion to subject himself to a polygraphic examination so as to aid in his defense. At the pre-trial hearing of the motion to suppress, Jordan testified that he was denied assistance of counsel and threatened, such denial and threats causing him to give incriminating information against himself. When the suppression hearing concluded, he reintroduced a previous motion requesting that he and the officers who were present when the statements were made be allowed to take a polygraphic examination so that the results thereof could aid the trial judge in deciding the motion to suppress. Under our case law, neither the taking of a polygraphic examination (lie detector test) nor its result is admissible in evidence. Harrison v. State, 307 So.2d 557 (Miss.1975); United States v. Sockel, 478 F.2d 1134 (8th Cir. 1973); United States v. Masri, 547 F.2d 932 (5th Cir. 1977).

Next Jordan urges that the court erred in overruling defense motions and objections pertaining to the manner in which the state examined prospective jurors concerning their conscientious scruples against the infliction of the death penalty. A review of the record, however, indicates that the guidelines of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Stevenson v. State, 325 So.2d 113 (Miss.1975), were adhered to in every instance, as held by the lower court. Accordingly, there is no reversible error in this aspect of the case.

Jordan asserts that the court erred in overruling motions to quash the indictment and grant a new trial on the grounds that retrospective application of the procedures pursuant to Jackson v. State, supra, would violate the constitutional prohibition of ex post facto laws. Jordan committed the murder of Mrs. Marter on January 12, 1976, and he was tried in accord with our pronouncements in Jackson v. State, 337 So.2d 1242 (Miss.1976), which we handed down October 5, 1976. On this basis, Jordan says that application of Jackson, supra, to his trial constitutes a violation of “state and federal prohibitions against ex post fac-to laws.” This question, however, has already been decided adversely to Jordan’s position. Bell v. State, 353 So.2d 1141 (Miss.1978); Irving v. State, 361 So.2d 1360 (Miss.1978).

Jordan also contends that the court erred in overruling motions to quash the indictment and grant a new trial in that the rationale of Jackson v. State, 337 So.2d 1242 (Miss.1976), constitutes radical irregularity in the lawmaking process in violation of due process. The gist of Jordan’s argument here is that “the court cannot create a law. Its sole power is to enforce the statute as written by the legislature.” This same argument was made in Gray v. State, 351 So.2d 1342 (Miss.1977), but in Gray we adhered to our decision in Jackson, supra. See Hill v. State, 339 So.2d 1382,1386 (Miss. 1976). We point out that since we decided Jackson, supra, we have reversed and remanded fourteen cases where the death penalty was ordered in cases which predated Jackson. In all of these fourteen cases we ordered retrial under the directions of Jackson. Hicks v. State, 355 So.2d 679 (Miss.1978); Stevenson v. State, 354 So.2d 1095 (Miss.1978); Davis v. State, 349 So.2d 509 (Miss.1977); Spencer v. State, 348 So.2d 1030 (Miss.1977); Culberson v. State, 348 So.2d 1025 (Miss.1977); Caldwell v. State, 347 So.2d 1389 (Miss.1977); Pickle v. State, 345 So.2d 623 (Miss.1977); Moore v. State, 344 So.2d 731 (Miss.1977); Henderson v. State, 342 So.2d 744 (Miss.1977); Jones v. State, 342 So.2d 735 (Miss.1977); Ivey v. State, 341 So.2d 918 (Miss.1976); and Wans-ley v. State, 339 So.2d 989 (Miss.1976). In Upshaw v. State, 350 So.2d 1358 (Miss.1977), we reversed and remanded for a new trial under Jackson and Miss. Gen’l Laws Ch. 458 (1977). On August 2, 1978, we again followed Jackson in Irving v. State, infra.

Reversal is also urged on the basis that the court erred in refusing appellant’s jury instruction D-13 at the second phase of the trial. D-13 states:

The Court instructs the jury that you do not have to find any mitigating circumstances in order to return a verdict that the accused should be sentenced to life in prison.

Here, Jordan relies on Jackson v. State, which held:

The jury shall not be required to make a special finding of any mitigating circumstances in order to return a verdict that the accused should be sentenced to life in prison. However, before the jury may return a verdict that the defendant should suffer the penalty of death, they must unanimously find in writing that after weighing the mitigating circumstances and the aggravating circumstances one against the other that the mitigating circumstances do not outweigh the aggravating circumstances and that the defendant should suffer the penalty of death. (Emphasis added).

We note the great difference in not requiring the jury to find any mitigating circumstances in order to return a verdict of life imprisonment as opposed to not requiring the jury to “make a special finding of any mitigating circumstance .in order to return a verdict that the accused should be sentenced to life in prison.” (337 So.2d at 1256). If there were any merit to Jordan’s contention here, and if instruction D-13 be considered as correct, the jury resolved the issue by finding:

We unanimously find that after weighing the mitigating circumstances and the aggravating circumstances, one against the other, that the mitigating circumstances do not outweigh the aggravating circumstances, and that the Defendant should suffer the penalty of Death.

Upon these facts, there is no reversible error in the refusal to grant instruction D-13.

Jordan raises the argument that the court erred in granting, over his objections, three unnumbered jury instructions requested by the state at the second phase of the trial containing language that the jury should fix the penalty at death, unless the mitigating circumstances shown by the evidence outweigh the aggravating circumstances. The three instructions in dispute are as follows:

The Court instructs the Jury that before you may return the death penalty, you must unanimously find in writing that after weighing the mitigating circumstances and the aggravating circumstances one against the other that the mitigating circumstances do not outweigh the aggravating circumstances and that the Defendant should suffer the penalty of death.
The Court instructs the Jury that your verdict must be written on a separate sheet of paper and be in the following form, to-wit:
(1) “WE UNANIMOUSLY FIND THAT AFTER WEIGHING THE MITIGATING CIRCUMSTANCES AND THE AGGRAVATING CIRCUMSTANCES, ONE AGAINST THE OTHER, THAT THE MITIGATING CIRCUMSTANCES DO NOT OUTWEIGH THE AGGRAVATING CIRCUMSTANCES, AND THAT THE DEFENDANT SHOULD SUFFER THE PENALTY OF DEATH.” or
(2) “WE, THE JURY, FIND THAT THE DEFENDANT SHOULD BE SENTENCED TO LIFE IMPRISONMENT.” or
(3) “THE JURY HAS BEEN UNABLE TO AGREE UNANIMOUSLY ON PUNISHMENT.”
(IN WHICH CASE IT SHALL BE THE DUTY OF THE COURT TO SENTENCE THE DEFENDANT TO LIFE IMPRISONMENT.)
The Court instructs the Jury that Proof beyond a reasonable doubt of the statutory elements of the capital offense with which the accused is charged shall constitute sufficient circumstance to authorize imposition of the penalty of death unless the mitigating circumstances shown by the evidence outweigh the aggravating circumstances.

Essentially, Jordan contends that “the guidelines of Jackson appear to require the Defendant to shoulder the burden of proof on mitigating circumstances versus aggravating circumstances.” Jackson simply holds, however, that one on trial for the charge involved here must be given an opportunity to present any “circumstance or combination of circumstances surrounding his life and character or the commission of the offense with which he is charged that would be reasonably relevant to the question of whether he should suffer death” or life imprisonment. (337 So.2d at 1256). Ju-rek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), held that:

A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed. (Emphasis added). (428 U.S. at 271, 96 S.Ct. at 2956, 49 L.Ed.2d at 938).

We understand the established law to be that one on trial for capital murder must be allowed, at his option, to present mitigating circumstances. Here, Jordan exercised his option and presented evidence of his good reputation, and his good relationship with his parents. A preacher testified that Jordan had made a decision to “settle his issues as far as God is concerned.”

Contention is made that the court erred, after the jury in the second phase of the trial made certain statements in open court, in overruling appellant’s motion to direct a sentence of life in prison or, in the alternative, to declare a mistrial. After deliberating in the second phase (as to punishment) of the bifurcated trial, the jury came into open court and announced that no agreement had been reached as to punishment. At that point the judge ordered them to go back into the jury room and follow the instructions already given. Then Jordan’s counsel moved for a mistrial or for the court to impose a life sentence, which motion was overruled, and the district attorney inquired of defense counsel if the motion was for a mistrial and confessed the motion. Then the trial judge offered defense counsel an opportunity to renew the motion for a mistrial, but counsel declined to renew the motion. Almost an hour later, the jury returned the verdict fixing the penalty at death, and all jurors, upon being polled, affirmatively indicated that they voted for the death penalty, leaving no doubt that the jury unanimously agreed on the verdict. Upon the posture of this case, the trial court’s refusal to enter a mistrial when the defense counsel declined to renew its motion cannot be error. The jurors, when they first came back into open court, did not announce that they could not reach a verdict even if given additional time to deliberate. Sharplin v. State, 330 So.2d 591 (Miss.1976), authorizes the trial judge to return the jury for further deliberations if he thinks it likely that a verdict may be reached.

There is no merit whatever to the contention that the court erred in overruling appellant’s motion in opposition to the jury in the second phase of the trial being brought into open court for inquiry. Argument on behalf of Jordan is that:

It was not good practice to bring the Jury into an Open Court which contained as spectators the widower of the victim, and a majority of the State’s witnesses and which did not contain as spectators any of the family of the accused or any witnesses on his behalf. Such actions prejudiced Appellant and could have been easily prevented by bringing the Jury back into Court in a closed session.

The public has a substantial interest in the public nature of a trial and the action of the trial court in allowing the jury to come into open court was not inappropriate. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Brown v. State, 222 Miss. 863, 77 So.2d 694 (1975). We point out that the record does not indicate that Jordan was prejudiced by the action of the jury in returning into open court rather than in “closed session.”

Pursuant to Jackson v. State, supra, and now as required by Miss.Code Ann. § 99-19-105 (Supp.1977), we review every case involving the death penalty as a preference case and do so in a careful, painstaking, and discriminating manner. In doing so, we compare the record in each case with similar eases in order to insure that infliction of the death penalty is not excessive when the aggravating and mitigating circumstances are weighed against each other. By these procedures, the death penalty will not be wantonly or freakishly imposed, but imposed only in a consistent and even-handed manner. We affirmed the death penalty in Bell v. State, 360 So.2d 1206 (Miss.1978), which involved a murder-robbery conviction where the defendant was seventeen years of age. There he took part in the service station robbery and in the slaying of the eighteen-year-old service station attendant after the robbery. Likewise, Washington v. State, 361 So.2d 61 (Miss.1978), was a robbery-murder conviction resulting in a death sentence. There Washington, along with another, immediately after robbing a convenience store, shot one of the proprietors with a shotgun and fatally wounded him. Washington was an unmarried, twenty-three-year-old male who had a three-year-old daughter, and his past record consisted only of conviction of a marijuana crime. We affirmed the death penalty conviction in Irving v. State, 361 So.2d 1360 (Miss. 1978), in which Irving was convicted of robbery-murder. Irving shot and killed the proprietor of a country store by shooting him in the neck with a shotgun at close range while attempting the robbery. He was twenty years of age, with’ a previous conviction of burglary. In the case of Voyles v. State, 362 So.2d 1236 (Miss.1978), Voyles was given the death penalty for the capital murder of his girl friend, Bernice Griggs, with whom he had been having an affair for some time. Voyles was thirty years old and apparently killed his girl friend because of his disappointment in her purchasing a car and not placing it in his name. He beat her into unconsciousness and then ran over her with her automobile which he was driving, after which he took money from her person and kept her car for his own use and subsequently tried to sell it. Voyles had a past criminal record consisting of only a conviction upon a plea of guilty to burglary.

The present case reveals that Jordan, twenty-nine years old, a former member of the armed forces, out of a desire to obtain money, abducted Mrs. Marter at gunpoint and fatally shot her out in the woods when she tried to escape. Afterward, he continued with his grotesque scheme to obtain money by demanding and receiving a ransom from his victim’s husband. The record is devoid of proof of Jordan’s past criminal record, if any. Our careful review of the entire record in this case, and comparing it with the other cases involving death penalties affirmed since Jackson, supra, establishes that the death penalty here is not excessive when the aggravating and mitigating circumstances are weighed against each other. Infliction of that penalty here will not in any manner be either wanton or freakish, and will be consistent and evenhanded with other death penalty cases previously affirmed by this Court.

Scrutiny of the record shows that the jury which tried the case was specially sworn in accordance with the pertinent statute, Miss.Code Ann. § 13-5-73 (1972). On an occasion when Jordan was out of the jury’s presence with his parents, the record shows that Jordan’s trial was not allowed by the court to resume until he was again properly present. According to the record, Jordan was present when prospective jurors’ names were drawn from the box.

The case was well tried by both sides and the trial judge took every possible action to insure that a fair trial was afforded though the crime committed by Jordan was extremely calloused and disdainful of human life and human feelings. Jordan’s guilt was established beyond any reasonable doubt by an unbroken chain of physical evidence corroborated by his confession (given to FBI Agent Watts) which was not tainted in any respect. No reversible error has been pointed out by counsel, or revealed by our painstaking scrutiny of the entire record.

Friday, the 12th day of January, 1979, is fixed as the date of execution of the death sentence.

AFFIRMED.

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

      . The same jurors who tried the case as to guilt also tried the issue of punishment.