author: HAWKINS, Justice,

text:
    Howard JONES v. STATE of Mississippi.
    No. 52536.
    Supreme Court of Mississippi.
    May 27, 1981.

      Tom Tullos, Bay Springs, for appellant.
    Bill Allain, Atty. Gen., Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

The appellant Howard G. Jones was convicted by the Circuit Court of Jasper County of aggravated assault in the shooting of Mrs. Doris Hutto with a .22 calibre pistol, and sentenced to serve a term of 15 years. He was indicted by the grand jury of that county March 7, 1979, and his first trial began September 7, 1979.

During the course of the first trial several law enforcement officers, prefatory to offering into evidence a taped recording of Jones’s confession, testified before the court as well as the jury that aNMiranda warnings had been given.

When the tape was played before the jury, however, the first words heard were a request by the defendant for a lawyer.

Defense counsel promptly objected, and the court declared a recess. Out of the presence of the jury it was revealed the officers had two taped recordings of statements made by the defendant. The first was played to the jury by the state, the prosecution apparently being totally unaware of the content of the first statement before it was actually played to the jury. The court directed both tapes be played in chambers. Discomfited, the state’s attorney then told the court the state could not proceed with the ease before that jury.

The court called the jury back into the courtroom, and announced the court was excluding the confession.

The state then announced it was not able to proceed “with this particular trial and the state moves for a mistrial.”

The court thereupon announced: “The mistrial will be granted,” and dismissed the jury.

Prior to the second trial, the defendant made a motion to dismiss because of the double jeopardy proscription of the Fifth Amendment of the United States Constitution. Nevertheless, another trial was held March 6,1980, at which time the defendant was convicted.

The critical issues raised by this appeal are first, whether or not the prohibition against double jeopardy had attached when the state made its motion for a mistrial, and secondly, did the court abuse its discretion in granting a mistrial, thereby giving the defendant immunity from further prosecution. We are compelled to answer both propositions in the affirmative. Mandated by decisions of the United States Supreme Court, the rule in this state beginning with this case is that double jeopardy attaches in any criminal proceeding at the moment the trial jury is selected and sworn to try the case. Because of the guarantee against double jeopardy granted to all citizens by the Fifth Amendment to the United States Constitution no retrial for the same offense will be permitted in any criminal case in which the first trial, following the swearing and impaneling of the jury, was aborted prior to conclusion, unless exceptional circumstances existed in the first case, and there was a manifest necessity for the trial judge to declare a mistrial.

In the halcyon days of prosecution of criminal cases in Mississippi, the rule in all our state courts was double jeopardy prohibition did not attach until there had been a verdict by the jury or judgment of the court. In Lovern v. State, 140 Miss. 635, 105 So. 759 (1925), this Court held:

“In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial ‘on the merits’ of the crime for which he is again sought to be convicted. Mississippi Constitution § 22.”

This rule was followed in the cases of State v. Pace, 210 Miss. 448, 49 So.2d 710 (1951) and Bounds v. State, 271 So.2d 435 (Miss.1973).

The federal courts, however, have consistently applied a different rule. In United States v. Perez, 22 U.S. 579, 9 Wheat 579, 6 L.Ed. 165 (1824), in the first trial a mistrial was declared because of a hung jury. Upon retrial, the defendant pleaded double jeopardy. This claim was rejected by the United States Supreme Court, but with the following cautionary language:

“We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should by extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.”

In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the defendant’s indictment charged arson in the first count and murder in the first degree in the second count. As to the second count, on the trial, the trial judge instructed the jury on both first and second degree murder. The jury returned a verdict finding the defendant guilty of arson under the first count and of second degree murder under the second count. Upon the defendant’s appeal from his conviction of second degree murder, the Court of Appeals reversed that conviction. On remand the defendant was tried again for first degree murder under the original indictment, and at the outset of the second trial he raised the defense of former jeopardy, which was overruled. He was found guilty of first degree murder and sentenced to death. This conviction was affirmed by the nine judges sitting en banc in the Court of Appeals, but the case was reversed by the United States Supreme Court. The United States Supreme Court held that the defendant could not be tried again for first degree murder. The Court used the following language:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
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“Moreover, it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again. . . This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances. . . arise during (the first) trial making its completion impossible, such as the failure of a jury to agree on a verdict.’ ”

In the case of Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) during a criminal prosecution in the United States District Court for the Western District of Texas, after the jury had been selected and sworn, and instructed to return that afternoon, the prosecution asked that the jury be discharged because its key witness had not yet been found. Over the objection of the defendant, the court discharged the jury, and two days later empaneled a second jury, which found the accused guilty. The United States Supreme Court held this to be impermissible, that the government should not be permitted to try the defendant a second time under the circumstances of this case. Again, the language of the court is very instructive:

“. . . it has been agreed that there are occasions when a second trial may be had although the jury impaneled for the first trial was discharged without reaching a verdict and without the defendant’s consent. The classic example is a mistrial because the jury is unable to agree. . . Discovery by the judge during a trial that a member or members of the jury were biased pro or con one side has been held to warrant discharge of the jury and direction of a new trial. . . At times the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest— when there is an imperious necessity to do so... Differences have arisen as to the application of the principle. . . Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches. .. But those extreme cases do not mark the limits of the guarantee. The discretion to discharge the jury before it has reached a verdict is to be exercised ‘only in very extraordinary and striking circumstances,’ to use the words of Mr. Justice Story in United States v. Coolidge (CC Mass.) 2 Gall. 364 [25] F.Cas.No. 14858. For the prohibition of the Double Jeopardy Clause is ‘not against being twice punished; but against being twice put in jeopardy.’ ”
******
“ ‘The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance. While their absence might have justified a continuance of the case in view of the fact that they were under bond to appear at that time and place, the question presented here is entirely different from that involved in the exercise of the sound discretion of the trial court in granting a continuance in furtherance of justice. The situation presented is simply one where the district attorney entered upon the trial of the ease without sufficient evidence to convict. This does not take the case out of the rule with reference to former jeopardy. There is no difference in principle between a discovery by the district attorney immediately after the jury was impaneled that his evidence was insufficient and a discovery after he had called some or all of his witnesses.’ ”

In the case of United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1970), the United States was prosecuting in the District Court of Utah a preparer of income tax returns for willfully assisting in the preparation of fraudulent income tax returns. The jury was duly empaneled, and the first witness, a government agent, had completed his testimony. The trial judge, acting on his own motion, discharged the jury and declared a mistrial when he concluded that taxpayers who were to be called as witnesses by the government, and who allegedly had been aided by the defendant in preparing their returns, had not been properly advised on initial contact by the Internal Revenue Service of their constitutional rights against self-incrimination, and thus should be allowed to consult with attorneys. Beginning on page 554, the Court made the following statement:

“As the Court noted in Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), ‘a defendant’s valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public’s interest in fair trials designed to end in just judgments.’
“Thus the conclusion that ‘jeopardy attaches’ when the trial commences expresses a judgment that the constitutional policies underpinning the Fifth Amendment’s guarantee are implicated at that point in the proceedings.”

The Court again stated on 400 U.S. page 482, 91 S.Ct. page 536:

“... it is because, independent of the threat of bad-faith conduct by a judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial.”

Again on 400 U.S. page 485, 91 S.Ct. page 557 of the opinion, the Court stated the following:

“. .. Yet we cannot evolve rules based on the source of the particular problem giving rise to a question whether a mistrial should or should not be declared, because, even in circumstances where the problem reflects error on the part of one counsel or the other, the trial judge must still take care to assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.
“In sum, counsel for both sides perform in an imperfect world; in this area, bright-line rules based on either the source of the problem or the intended beneficiary of the ruling would only dis-serve the vital competing interest of the Government and the defendant. The trial judge must recognize that lack of preparedness by the Government to continue the trial directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee. Cf. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Alternatively, the judge must bear in mind the potential risks of abuse by the defendant of society’s unwillingness to unnecessarily subject him to repeated prosecutions. Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.”

As to the argument made before the Supreme Court that the prosecutor did not request a mistrial, nor in fact did the defendant object, the Court stated the following beginning on 400 U.S. page 485, 91 S.Ct. page 557 of the opinion:

“. .. the judge cut him off in midstream and immediately discharged the jury. It is apparent from the record that no consideration was given to the possibility of a trial continuance; indeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so. When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of his mistrial.... Therefore, we must conclude that in the circumstances of this case, appellee’s re-prosecution would violate the double jeopardy provision of the Fifth Amendment.”

In Gori v. United States, 367 U.S. 364, 81 S.Ct. 2523, 6 L.Ed.2d 901 (1961) the district judge declared a mistrial under circumstances which led the appellate courts to conclude he had done so to protect the interest of the accused. The United States Supreme Court held this action, having been made in the interest of the accused, did not prevent a retrial. Also, annotations of cases involving the claim of double jeopardy after declaration of a mistrial in federal courts, 6 L.Ed.2d pp. 1510-1519, give further examples.

Beginning with Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the United States Supreme Court has held the double jeopardy bar of the Fifth Amendment to the United States Constitution is applicable to state court trials as well. Also, Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1972).

Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1977) bears heavily on the ruling we must make in this case. In Crist, a Montana state court, after the jury was empaneled and sworn, but before any witnesses were sworn, granted a prosecution motion to dismiss the information. Thereafter, a second information, not containing the error for which the first information had been dismissed, was filed, and at the beginning of the second trial defendants made a motion to dismiss on ground of double jeopardy clauses of the United States and Montana Constitutions. The trial court overruled the motion, and the defendants applied for habeas corpus relief in the Supreme Court of Montana, which was denied. The case proceeded to trial, and upon their conviction, the defendants applied for habeas corpus relief in a United States District Court. When the case reached the United States Supreme Court, it held the federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy, and therefore applicable to state courts as well. The second trial of the defendants was held to be impermissible under the United States Constitution.

In Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1977) defense counsel made prejudicial comments to the jury in his opening statement after being warned by the Court to refrain from doing so. The Court declared a mistrial upon the motion of the state. The trial judge did not expressly find there was a manifest necessity for a mistrial, nor expressly state he had considered alternative solutions and concluded none would be adequate to cure the prejudice arising from the comments made by defense counsel. The United States Supreme Court made the following observations, beginning on 434 U.S. page 507, 98 S.Ct. page 831, 54 L.Ed.2d page 729 of the Report:

“... we assume that there are degrees of necessity and we require ‘high degree’ before concluding that a mistrial is appropriate.
“The question whether that ‘high degree’ has been reached is answered easily in some kinds of cases than in others. At one extreme are cases in which a prosecutor requests a mistrial in order to but- ' tress weaknesses in his evidence. Although there was a time when English judges served the Stuart Monarchs by exercising a power to discharge a jury whenever it appeared that the Crown’s evidence would be insufficient to convict, the prohibition against double jeopardy as it evolved in this country was plainly intended to condemn this ‘abhorrent’ practice... . ”

The Court finally concluded, that even though the trial judge had made no express finding before declaring a mistrial, it was obvious in this case there was no abuse of discretion in declaring a mistrial, and by so doing he had not granted the defendant immunity from retrial for the same offense.

It could be argued the failure of defense counsel to object to the court’s ordering a mistrial upon the motion of the state cured such error. We cannot agree with this contention, because in the first place, the wise and learned trial judge, with a wide experience in conducting trials in circuit court, would certainly have offered defense counsel an opportunity to interpose an objection had he any thought of sustaining such an objection and ordering the trial to continue. If trial judges have any inclination whatever except to grant a motion made by a party, they invariably ask opposing counsel for their position on the motion. In the second place, when a mistrial is granted under such circumstances as in this case, the defendant is not required to object in order to avail himself of the constitutional privilege against being prosecuted twice. There may well be gray areas in which the trial judge must exercise his discretionary powers in determining whether or not a mistrial should be declared, and in which the position of both parties is requested by the court, where the defendant’s position of either objecting or assenting to a mistrial will become quite relevant in considering whether a retrial constitutes double jeopardy. There are also cases, of course, in which the defendant himself must for his protection affirmatively move for a mistrial. A mistrial granted in such a case would never bar a subsequent trial for the same offense. We cannot lay down precise or exact rules, each case must rest upon its own particular facts. We do hold, however, that in a clear cut case as this, the failure of defense counsel to interpose an objection, when a mistrial is abruptly declared will not authorize a subsequent trial for the same offense.

We have no doubt given a broader view of the application of the federal rule in various eases than necessary to reach a decision in this case, hopefully in order to demonstrate to prosecuting attorneys and trial judges there is no simple rule or formula defining the standard of “manifest necessity”. or when exceptional circumstances exist justifying a declaration -of mistrial by the trial court. The question is not easily answered. There are obvious cases of manifest necessity, e. g., a hopelessly hung jury, or a tainted jury, just as this case is an obvious case where “manifest necessity” to declare a mistrial was absent. In the final analysis, the determinations must be made by the trial judge fulfilling his somber responsibility as to when justice requires him to declare a mistrial.

Although it may not be necessary in each case to do so, we believe a prudent procedure for any trial court before declaring a mistrial would be to state into the record the reasons for declaring a mistrial. It is in his sound discretion to determine the necessity of declaring a mistrial, and upon any appeal his reasons as stated for the record will be accorded the greatest weight and respect by an appellate court.

Schwarzauer v. State, 339 So.2d 980 (Miss.1976) was a harbinger to prosecuting attorneys and trial judges this State might depart from the previous rule existing in state prosecutions as to when double jeopardy attached. In that case the trial court had sequestered the jury, and learned the next day two of the jurors during the night had become separated from the remaining jurors and visited in the motel lobby where the jury was spending the night. The trial judge declared a mistrial. The defendant argued double jeopardy in the second trial, and also upon appeal to this Court following conviction. We held the mistrial was ordered because the judge felt compelled to take such action in order to protect the rights of the defendant and the state to the end that justice would be served. No refuge was taken in that case under the prevailing state court rule at the time that double jeopardy did not attach until an acquittal or conviction. We stated therein, page 982:

“... We are unwilling to rule that the double jeopardy provision of the Fifth Amendment to the United States Constitution means that every time a defendant is put to trial he must be set free if the trial aborts and does not conclude with a final judgment. The better rule which we apply here is that trial judges are peculiarly situated so as to decide (better and more logically than anyone else) when a trial should be discontinued. Such action may be taken in proper cases, after which the defendant may be tried by another panel of jurors, when the trial judge reasonably concludes that the ends of justice would thereby be best served, even though the defendant objects. In such situations, and absent any indication of prosecutorial manipulation as is the case here, we will not reverse a criminal conviction. We recognize that the fair and orderly administration of justice requires that trial judges must have reasonable discretion in dealing with errant jurors who demonstrate their unwillingness to abide by the instructions of the court, or other unanticipated occurrences which transpire during trials. Our holding is in accord with Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), and Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), both of which recognize that there are no rigid rules that can be followed in every case where double jeopardy is argued. Upon this record, our judgment is that the trial judge in ordering the mistrial appropriately acted within his sound judicial discretion in furtherance of the ends of justice. ...”

In this case, and in an attempt to give a somewhat broader perspective of the problem facing trial courts before declaring a mistrial, we reiterate the above quoted language from Schwarzauer.

The judgment of conviction is therefore reversed, and the appellant discharged.

REVERSED AND APPELLANT DISCHARGED.

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

      . In the early years of our Nation’s history, the Federal rule was the same as our State court rule. See cases cited in footnote to Perez. Even Judge Story, the author of the Perez opinion, in his Commentaries on the Constitution, § 1781, pp. 659-660, said as much. Apparently, when Perez was handed down in 1824, the Court had changed its mind.


source: Caselaw Access Project

license: Public Domain

text:
    Fred TISDALE v. STATE of Mississippi.
    No. 52640.
    Supreme Court of Mississippi.
    May 27, 1981.
    Tyree Irving, Walls, Buck & Irving, Greenville, for appellant.
   Appeal from Circuit Court, Claiborne County; John W. Prewitt, Judge.

Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Raleigh BROWN, Harvey Sowell and Sidney Sowell v. Donna J. PHILLIPS, James T. Phillips and William Wade Brown.
    No. 52737.
    Supreme Court of Mississippi.
    June 3, 1981.
    H. R. Garner, Hernando, Rhett R. Russell, Memphis, Tenn., for appellants.
    William W. Ballard, Hernando, for appel-lees.
   Appeal from Chancery Court, DeSoto County; L. E. Hannaford, Sr. and Dennis M. Baker, Chancellors.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

AFFIRMED WITHOUT PREJUDICE.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and BOWLING, JJ., concur.


text:
    Bobby Lee PICKENS v. STATE of Mississippi.
    No. 52740.
    Supreme Court of Mississippi.
    June 3, 1981.
    John R. Coleman, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lee County; Ralph Pogue, Judge.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Ferrall SPENCER v. STATE of Mississippi.
    No. 52706.
    Supreme Court of Mississippi.
    June 3, 1981.
    Eugene M. Bogen, Harold H. Mitchell, Jr., Wynn, Bogen & Mitchell, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Webb Franklin, Judge.

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

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, LEE and HAWKINS, JJ., concur.


text:
    Melvin GRIFFIN v. STATE of Mississippi.
    No. 52689.
    Supreme Court of Mississippi.
    June 3, 1981.
    Jack H. Hayes, Jr., Douglas C. Stone, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

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

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and WALKER, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    BOARD OF SUPERVISORS, HARRISON COUNTY, Miss. v. Mrs. Floyd GILL.
    No. 52738.
    Supreme Court of Mississippi.
    June 3, 1981.
    Boyce Holleman, Holleman & Krogstad, Gulfport, for appellant.
    Russell S. Gill, Gautier, for appellee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Larry JACKSON v. STATE of Mississippi.
    No. 52736.
    Supreme Court of Mississippi.
    June 3, 1981.
    Leon E. Provine, R. Stewart Guernsey, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Luvenia Morgan BRANUM, et al. v. Scott ROBINSON, Executor of the Estate of Corrie Miller Morgan, dec’d.
    No. 52658.
    Supreme Court of Mississippi.
    June 3, 1981.
    Edwin H. Roberts, Jr., Barrett J. Clisby, Roberts & Clisby, Oxford, Michael G. Soper, Tupelo, Ralph Pogue, Aberdeen, for appellants.
    Eugene D. Brown, Jr., Crutcher, Spencer & Brown, Holly Springs, for appellee.
   Appeal from Chancery Court, Marshall County; Fred P. Wright, Chancellor.

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

AFFIRMED.


text:
    AERO MAYFLOWER TRANSIT CO., INC. v. Tim RICE & Janie Holley Rice.
    No. 52743.
    Supreme Court of Mississippi.
    June 3, 1981.
    Susan K. Steadman, Eugene L. Fair, Morris & Fair, Hattiesburg, for appellant.
    R. Web Heidelberg, Heidelberg, Sutherland & McKenzie, Hattiesburg, for appel-lees.
   Appeal from Circuit Court, Wayne County; Henry Palmer and Lester F. Williamson, Judges.

Before SUGG, BROOM and BOWLING, JJ.

AFFIRMED.


text:
    CITY OF MERIDIAN v. Warren B. BROWN.
    No. 52703.
    Supreme Court of Mississippi.
    June 3, 1981.
    William J. Gunn, Williams, Gunn & Cren-shaw, Meridian, for appellant.
    Joe R. Odom, Meridian, for appellee.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

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

AFFIRMED.


text:
    Paul Brown DRYE and Anne E. Schager v. PIEDMONT BANK & TRUST CO.
    No. 52697.
    Supreme Court of Mississippi.
    June 3, 1981.
    Henry L. Tillman, Pascagoula, for appellant.
    Robert Alan Byrd, Rushing & Guice, Biloxi, for appellee.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

AFFIRMED


author: WALKER, Justice.

text:
    Kenneth E. MURRAY v. HUGGERS MANUFACTURING, INC.
    No. 52682.
    Supreme Court of Mississippi.
    June 3, 1981.
    Albert D. Malone, Michael S. Allred, Sat-terfield & Allred, Jackson, for appellant.
    Steven D. Orlansky, Watkins & Eager, Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   WALKER, Justice.

Kennenth E. Murray filed suit in the Circuit Court of the First Judicial District of Hinds County against Huggers Manufacturing, Inc. charging breach of contract and fraud. Huggers, appearing specially, moved the court to dismiss the action for lack for jurisdiction, which motion was sustained. Murray appeals. We reverse and remand.

Kenneth Murray is an adult resident citizen of the First Judicial District of Hinds County, Mississippi. Huggers is a Texas corporation engaged in the manufacture of “huggers,” a cup-shaped synthetic product designed to surround and insulate beverage containers to prevent loss or gain of heat. On or about June 15,1979, Murray contacted the defendant in Bay Town, Texas, and entered into an oral agreement with the defendant for exclusive sales territory. This territory was subsequently modified to include most of Mississippi and all or part of three other states. Also, the defendant later promised Murray a commission of three cents on each unit of “huggers” product sold from another source in Murray’s territory. In October of 1979 Murray visited the defendant’s plant in Bay Town, Texas, and concluded an oral agreement with the defendant for an exclusive dealership for a term of one year, commencing November 1, 1979, and ending October 31, 1980.

During the calendar year 1979 the defendant had over $50,000 in sales in Mississippi. Affidavits introduced at the hearing on the motion to dismiss disclosed that stores in Mississippi ordered “huggers” from the defendant for delivery in Mississippi, and some of these orders were made through Murray. The “huggers” were shipped by common carrier to the stores in Mississippi.

Other affidavits disclosed that several telephone conversations were had between Huggers in Texas and Murray in Mississippi, and that a representative of Huggers came to Jackson, Mississippi, in August, 1979, to meet with Murray and another representative.

The defendant has never owned or operated a plant, factory or other facility within the State of Mississippi, has never had an office, telephone listing, bank account, or real or personal property situated within the State of Mississippi, and has never qualified to do business within the State of Mississippi.

The only question presented by this appeal is whether or not Mississippi Code Annotated section 13-3-57 (Supp. 1980) applies and whether or not the trial court erred in dismissing the suit. Section 13-3-57 reads, in part, as follows:

Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the secretary of state . .. to be true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings ... arising from or growing out of such contract ... by any such nonresident .... (Emphasis added).

The plaintiffs action is based upon a contract between the parties which was to be partially performed in Mississippi, and process on the defendant was had pursuant to section 13-3-57. The plaintiff was a resident of this State; he conducted negotiations for the purchase and/or distribution of a significant amount ($50,000 in one year) of the defendant’s product by telephone from Mississippi; and, according to the agreement plaintiff was to expend time and money selling the defendant’s product. The defendant, a nonresident, completed the transactions with full knowledge of the plaintiff’s residence and shipped a large quantity of its product to various businesses in Mississippi, thus, having an impact on the commerce of this State. Further, the defendant purposely availed itself of the privilege of doing business with a Mississippi resident, accepting several orders made through plaintiff and shipping its product to the purchasers in Mississippi. By the above acts, the plaintiff invoked the benefit and protection of Mississippi’s laws and could reasonably have anticipated that its acts would have consequences in Mississippi, even though the contract was allegedly consummated in Texas.

The exercise of jurisdiction, under the facts presented, by the courts of Mississippi, under our long arm statute, is consistent with statutory and constitutional requirements. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

This case is controlled by Miller v. Glendale Equipment & Supply, Inc., 344 So.2d 736 (Miss.1977), in which this Court held that the trial court erred in holding it did not have jurisdiction under the Mississippi long arm statute. Also see Electro-Craft Corp. v. Maxwell Electronics Corp., 417 F.2d 365 (8th Cir., 1969), which has nearly identical facts.

The case sub judice is readily distinguishable from Lakeside Bridge & Steel Co. v. Mountain State Construction Co., 597 F.2d 596 (7th Cir., 1979), cert. denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325 (1980). That case involved the shipping of goods out of the state, and not the delivery of goods into the state. The only significant contact with the forum was the placing of an order with an in-state manufacturer. Just recently, in Galbraith & Dickens Aviation Insurance Agency v. Gulf Coast Aircraft Sales, Inc., 396 So.2d 19 (Miss.1981), this Court explained why an out-of-state seller is more easily made subject to actions brought in this State on behalf of resident purchasers or users than are nonresident buyers.

Therefore, the trial court erred in holding that it did not have jurisdiction and in sustaining the motion to dismiss. For that reason, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

There are other assignments of error raised that were not considered by the trial court for the reason, apparently, that the defendant had appeared specially for the purpose of challenging the in personam jurisdiction of the court. Therefore, the assignments are not properly before us on this appeal.

REVERSED AND REMANDED.

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


author: WALKER, Justice for the Court: HAWKINS, Justice,

text:
    James H. SIPE v. Michael D. FARMER.
    No. 52590.
    Supreme Court of Mississippi.
    June 3, 1981.

      Michael J. Malouf, Michael K. Henry, Malouf & Malouf, Jackson, for appellant.
    Allan P. Bennett, Robert H. Weaver, Watkins, Ludlam & Stennis, Jackson, for appellee.
    Before SMITH, WALKER and BROOM, JJ.
   WALKER, Justice for the Court:

This is a personal injury action based upon assault and battery. The defendant, James H. Sipe, appeals from a judgment of the Circuit Court of the First Judicial District of Hinds County in favor of the plaintiff, Michael D. Farmer, for $250,000. He raises seven assignments of error.

On the evening of January 25, 1978, Michael D. Farmer’s unconscious body was found lying on the access ramp to the parking garage of the Holiday Inn on Amite Street in downtown Jackson. Farmer was taken to the Mississippi Baptist Hospital, where it was determined that he had suffered a fractured skull and a broken wrist. He remained an in-patient at the hospital for approximately thirty-five days. During this time he underwent multiple operations and received extensive medical care and treatment.

Farmer thereafter filed this suit against James H. Sipe, alleging that Sipe struck him on the left side of his head and on his right wrist with a heavy blunt instrument, such blows causing him to lose consciousness and fall or be knocked over a retaining wall on the northern-most end of the second floor of the Holiday Inn parking garage to the concrete surface of the garage exit ramp below. He alleged, alternatively, that he had jumped over the retaining wall following the blows in an attempt to escape further injury and save his life.

In his answer, Sipe denied the above allegations, but admitted that he struck Farmer once with his fist. After the disposition of several pre-trial motions, the cause was tried before a-jury. The only seriously disputed issue was whether or not Sipe caused the injuries sustained by Farmer, as alleged in the declaration.

Sipe testified that on the evening of January 25, 1978, he found his wife’s car parked in the parking lot of the Holiday Inn on Amite Street in downtown Jackson. Unable to find his wife in the lounge, he returned to the parking lot and let the air out of her right rear tire. He then went home and waited for her to call him to fix the flat tire. Her call never came. Shortly after ten o’clock p.m. Sipe returned to the Holiday Inn parking lot and parked his car in a position where he could view his wife’s car. A few minutes later he observed his wife walking to her car with the appellee, Farmer. Sipe then got out of his car and approached the other two. As he approached he saw his wife sitting in the car and Farmer leaning over the open door with his head close to Sipe’s wife. He stated that it appeared to him that Farmer was kissing his wife. He said, “Who in the hell are you with my wife.” He then hit Farmer on the back of his neck or head with his fist and stepped back to defend himself. Farmer ran and Sipe gave chase but was interrupted when his wife backed the car out of the parking space and almost ran over him. Sipe stated that he never got within twenty to thirty feet of Farmer thereafter but, instead, got into his car and followed his wife’s car out of the parking lot. Sipe denied that he had any instrument in his hand or that he was ever close to Farmer when Farmer fell or jumped over the retaining wall to the access ramp below.

Farmer’s testimony was sharply conflicting with Sipe’s. According to Farmer, Sipe said something in a very loud voice as he approached him from behind. Mrs. Sipe then closed her car door and took off in a hurry. Farmer testified that he ran away from Sipe to the wall on the second floor of the garage. He related what then happened as follows:

I looked over the wall and thought, ‘My god, I’ll break a leg if I go down there,’ so I turned around to try to at least calm the man down and tell him, ‘nothing— just a friend.’ I was attempting to try that when he hit me as hard as he could with a tire tool. That’s exactly what he did. And apparently I tried at that point to turn around and get away or go on over the wall but what I did, I can’t tell you because I don’t know. I assume I tried.

In addition to Farmer’s testimony, he presented expert medical testimony about the cause of his injuries. The medical testimony was that the pattern of bone fragmentation sustained by him was consistent with a blow by a blunt instrument, such as a tire tool. On the other hand, Sipe presented expert testimony that the skull fracture was consistent with an injury one would sustain in a fall onto a smooth concrete surface.

The jury found Farmer’s version of the events to be more credible and returned a verdict for Farmer in the amount of $250,-000 actual damages. The jury made no award for punitive damages requested by Farmer. On this appeal Sipe does not question the amount of the damages awarded or the sufficiency of the evidence to support the jury’s verdict. However, he does allege that there were several errors in the trial which prevented him from presenting his case to the jury and contends that these errors require that we reverse and remand the cause for a new trial. These errors will be separately discussed below.

I.

DID THE LOWER COURT ERR IN DISMISSING APPELLANT’S COUNTERCLAIM PRIOR TO TRIAL?

Sipe incorporated in his original answer a counterclaim, alleging alienation of affection of his wife. Farmer filed a motion to strike the counterclaim on the basis that it did not arise out of and was not connected with the subject matter of the assault and battery claim and was not within the contemplation of Mississippi Code Annotated section 11-7-69 (1972). The lower court apparently sustained this motion. (No order sustaining the motion appears in the record. However, the appellee has addressed this assignment of error on the merits.) Section 11-7-69 provides, in part, as follows:

In all suits at law where the defendant has a claim or demand against the plaintiff arising out of or connected with the situation, occasion, transaction or contract or subject matter upon which the plaintiff’s action is based, . .. the defendant in his answer may plead his claim or demand against the plaintiff by way of counterclaim, in recoupment, stating the facts upon which such counterclaim is based. (Emphasis added).

The counterclaim alleged that on January 25, 1978, Mr. Farmer engaged in a love affair with Mrs. Sipe and attempted to persuade her to leave Mr. Sipe. The appellant claims that the counterclaim is proper because it is closely connected with the subject matter upon which the original claim is based.

We agree that the allegations of alienation of affection in the counterclaim were so closely connected with the subject matter of the original suit, /. e., the assault and battery of Farmer by Sipe for Farmer being caught at a motel with Sipe’s wife, that the lower court should have permitted the counterclaim to be tried along with the original claim. It is unimportant that Sipe did not know of the alleged love affair and talk of divorce and marriage prior to the battery.

The appellee’s reliance on Irby v. Citizens National Bank, 239 Miss. 64, 121 So.2d 118 (1960) is misplaced. In Irby, the plaintiff sued on a promissory note and the defendant counterclaimed for wrongful interference with his business. However, the alleged interference took place one year prior to the execution of the note. This Court said that the counterclaim had “no causal or factual relation to the promissory note” and affirmed the trial court’s action in sustaining the motion to strike the counterclaim.

A similar situation was presented in Lister v. Bank of Lucedale, 349 So.2d 1056 (Miss.1977). In Lister, the plaintiff filed suit for the balance due on a promissory note. The defendant filed a counterclaim, alleging that the Bank rudely interrupted a business deal and ruined it. The defendant alleged that the Bank official committed a tort and damaged him when he discussed the collection and payment of the note sued upon and the defendant’s credit relationship with the Bank in the presence of the defendant’s business associate. The Court stated that the counterclaim should not have been dismissed because it was “connected with the situation” giving rise to the original suit as required by the counterclaim statute.

Likewise, the counterclaim in the case at bar alleged facts which were so closely connected with the situation upon which the plaintiff’s action was based as to make it a proper counterclaim under the statute.

II.

DID THE LOWER COURT ERR IN SUSTAINING APPELLEE’S MOTION IN LIMINE, PROHIBITING THE INTRODUCTION OF CERTAIN EVIDENCE?

Prior to the trial the lower court entered an order prohibiting Sipe from introducing evidence relating to events about which he had no actual knowledge at the time of the alleged assault and battery, including whether Mrs. Sipe had been with Michael Farmer in his room between the hours of approximately 6:00 p.m. and 10:30 p.m., or whether Farmer and Mrs. Sipe engaged in sexual intercourse in Farmer’s hotel room, or whether Farmer and Mrs. Sipe had on any occasions prior to January 25, 1978, engaged in any acts of sexual intercourse.

The court correctly ruled that these matters were not admissible insofar as they related to the assault and battery. Morache v. Greenberg, 116 Conn. 549, 165 A. 684 (1933); 6A Am. Jur.2d Assault & Battery § 224 (1963); 6A C.J.S. Assault & Battery § 47 (1975). However, the evidence would be relevant to the counterclaim. On retrial, unless the counterclaim is dismissed for some other reason, Mr. Sipe should be allowed to present all evidence relevant to his counterclaim charging alienation of affection, regardless of whether he had specific knowledge of those facts at the time of his alleged assault and battery.

III.

DID THE LOWER COURT ERR IN ADMITTING EVIDENCE OF A SUBSEQUENT ASSAULT UPON A DIFFERENT PARTY?

Prior to trial Mr. Sipe filed a motion in limine to prohibit Farmer from introducing evidence that Mr. Sipe had assaulted his wife immediately subsequent to the alleged assault upon Farmer. The parking lot attendant at the Holiday Inn testified that Sipe drove down the exit ramp shortly after Mrs. Sipe and drove his car in front of her to prevent her from leaving the parking lot. He then struck his wife several times, pulled her hair, and generally threatened and abused her. Although the appellee contends that such evidence was relevant to show the intent and state of mind of Mr. Sipe, the argument is not convincing. The evidence had little, if any, probative value, and was extremely prejudicial to the appellant. The motion in limine should have been sustained.

IV.

DID THE LOWER COURT ERR IN ALLOWING THE APPELLEE’S MEDICAL EXPERT TO GIVE AN OPINION ON THE ULTIMATE FACT IN ISSUE AND TO BASE SUCH OPINION ON EXTRAJUDICIAL HEARSAY STATEMENTS?

The lower court, over strenuous objections by appellant, allowed the appellee’s treating physician and expert witness to state his opinion as to the type of outside force or forces which would cause an injury of the nature he found on Michael Farmer. He stated that in his opinion the type injury Farmer sustained would have to be delivered by a blunt instrument as opposed to a sharp, like a knife, instrument with a small end. He also testified that in his opinion the injury could not have been caused by a fall.

We are of the opinion that it was not error, under the particular circumstances of this ease, to allow the physician to give his conclusion after he explained why he reached that conclusion. Ordinarily, we let the witness tell the facts and leave it to the jury to determine the conclusion to be drawn from the facts. Hagan Storm Fence Co. v. Edwards, 245 Miss. 487, 148 So.2d 693 (1963).

However, since an expert witness, in a sense, discharges the functions of a juror, his opinion should be admitted if it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, of drawing a correct conclusion from the facts. Illinois Central Railroad Co. v. Williams, 242 Miss. 586, 135 So.2d 831 (1961).

In this case it is extremely doubtful that a juror could have drawn any conclusions from a simple recitation of the facts, such as the pattern of the skull fracture and the evidence or lack of evidence of a contracoup injury. In this case there was conflicting medical testimony about the cause of the skull fracture. Each medical expert, plaintiff’s and defendant’s, was permitted to give the facts on which he based his conclusion and to give his conclusion about the cause of the injury. This did not usurp the jury’s function, as the jury need not have accepted the conclusion of either expert witness. Therefore, under the circumstances of this case, it was not error to allow the expert witnesses to testify and give their conclusions about what force caused the particular skull fracture. We do note, however, that this Court does not yet apply Fed. R. Evid. 704, and this opinion should not be read as a sign that the Court has begun to relax the rule announced in previous opinions that an expert witness may not give his opinion on the ultimate issue.

The appellant’s contention that the testimony of Dr. Feegle was based on hearsay is not supported by the record. Although Dr. Feegle did testify that he wanted to have the benefit of Dr. Stringer’s observations from surgery, the record reveals that his testimony was based on his analysis of the hospital’s records, his examination of the scene of the parking lot, the X-rays, his experience and his general knowledge of the medical literature on these and other points. There is no evidence that he based his opinion in whole or in part on what another doctor told him.

VII.

DID THE LOWER COURT ERR IN REFUSING TO ALLOW THE JURY TO APPLY THE STANDARDS OF REASONABLENESS IN CONSIDERING THE ACTIONS OF THE APPELLEE?

The appellant requested jury instructions to the effect that he would not be liable for the injuries sustained by the appellee if they found that the appellee acted unreasonably in jumping over the wall and that the injuries were the results of this unreasonable action. Instructions D-10 and D-2 were properly refused. Instruction D-3, although inartfully drawn, should have been granted because it embodied the appellant’s theory of his defense that Farmer acted unreasonably after the initial battery in running and jumping over the retaining wall. On retrial it would be proper to grant such an instruction if it is tied in sufficiently to the facts in this case.

Assignments of error V and VI are without merit.

For the numerous reasons outlined above, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

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

HAWKINS and BOWLING, JJ., specially concur.

HAWKINS, Justice,

specially concurring:

I agree the case must be reversed because of the introduction of prejudicial testimony. I likewise agree that the counterclaim was properly pleaded under Mississippi Code Annotated § 11-7-69 (1972).

I do respectfully suggest, however, that the majority opinion should make it clear that simply because a counterclaim has been properly pleaded, it is not therefore mandatory upon the trial judge to try the original cause of action and counterclaim in a single trial. It is my opinion the trial judge has inherent power in exceptional cases to grant a severance on separate and distinct issues, and conduct separate trials of the original cause of action and the counterclaim. Furthermore, I cannot see how a party can claim prejudice simply because the counterclaim is severed and not tried in the same trial with the declaration. Granting a severance of separate issues such as expressed in a declaration and in a counterclaim is a matter which should be left in the sound discretion of the trial court.

The headnote to 88 C. J. S. TRIAL, § 9 reads:

“Although generally a lawsuit should not be tried piecemeal, in a proper case separate trials of distinct issues may be had, and it is within the discretion of the trial court to direct or refuse separate trials of different issues.”

As to counterclaims, this same authority, page 35 reads:

“In some jurisdictions a separate trial of the issue or issues raised by a cross claim or counterclaim is frequently, although not always, deemed proper and necessary; but in other jurisdictions the practice is to dispose of plaintiff’s claim or demand and a set-off, counterclaim, reconventional demand or other cross claim at one trial. Whether separate trials of a main action and a counterclaim or cross claim should be granted is within the discretion of the trial court.” (emphasis added)

I do not read § 11-7-69 as mandating a single trial of the declaration and counterclaim in all circumstances.

BOWLING, J., joins in this specially concurring opinion.


author: LEE, Justice,

text:
    Robert Earl MAY, Jr., alias Bubba May, Jr. v. STATE of Mississippi.
    No. 52543.
    Supreme Court of Mississippi.
    June 3, 1981.

      Mary C. Henkel, Ronald Reid Welch, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and HAWKINS, JJ.
   LEE, Justice,

for the Court:

Robert Earl May, Jr. (Bubba May) was jointly indicted in the Circuit Court of Lincoln County with Ernest Earl Toliver, Lawrence E. Williams, and Bob Henry Terrell for armed robbery. Appellant’s accomplices pled guilty and received twelve-year sentences. A jury found appellant guilty but did not fix sentence. The trial judge, Honorable Joe N. Pigott, sentenced May to twelve (12) years with the Mississippi Department of Corrections, and May has appealed, assigning fourteen (14) errors in the trial below. For purposes of appeal, they are consolidated into three (3) broad contentions, which will be discussed hereinafter.

On December 26, 1978, four (4) black males, one of whom was armed with a shotgun, robbed Mark Malone, proprietor of a fireworks stand in Lincoln County. Two (2) of the robbers wore stocking masks and two (2) were barefaced. One (1) of the unmasked males, later identified as appellant, took a money box containing thirty-seven dollars ($37.00) and a pistol from Malone, and the four fled. Malone and a bystander pursued them, but failed to catch up with the robbers. However, they were successful in recovering the money box and its contents along the roadside. Shortly thereafter, having received a reliable tip, police officers ascertained the identity of the four males and arrested them. One of the four was appellant, a fourteen-year-old sixth grade dropout. The others were aged seventeen (17), eighteen (18) and twenty-five (25) years.

All four of the robbers entered pleas of guilty on January. 17, 1979, and each was sentenced by the circuit judge to twelve (12) years in the custody of the Mississippi Department of Corrections. A great deal of public criticism resulted from appellant’s sentence, due to his age, and on February 23, 1979, the court granted his motion to withdraw the guilty plea, entered a plea of not guilty for him, and released him on bond. Appellant’s motion to transfer the cause to the Youth Court was overruled. Voluminous pretrial matters were filed and appellant’s attorneys sought, and the court granted, a separate trial on appellant’s competency to stand trial on the charge of armed robbery.

I.

Was the verdict of the jury on competency to stand trial manifestly against the weight of credible evidence and the result of bias, prejudice and/or fraud?

Appellant contends that he was not competent to stand trial on the armed robbery charge. A jury was impaneled and a two-day competency hearing was held. At the conclusion of the hearing, the jury returned the following verdict: •

“We, the jury, find that the defendant is now mentally competent to conduct a rational defense in this case.”

“Competent to stand trial” has been defined in Mississippi as requiring the defendant to be able to make a rational defense in that he show ability to intelligently confer with counsel about facts of the crime. Hawie v. State, 125 Miss. 589, 88 So. 167 (1921).

In Jaquith v. Beckwith, 248 Miss. 491, 157 So.2d 403 (1963), the Court said:

“[T]he court is concerned with a defendant being physically and mentally able to confer with his counsel as to the merits of the case, and to testify as a witness in his own behalf. In short, he should be able to comprehend his position and to participate rationally in his defense.” 248 Miss. at 499-500, 157 So.2d at 407.

See also Dushy v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), and Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

In applying the principle of law stated in the above cases, we examine the record to determine whether or not it reflects that appellant, at the time of the competency hearing, understood the charges against him and possessed the ability to rationally confer with his counsel and participate in the preparation of his defense. The appellant called seven (7) witnesses to prove his incompetency to stand trial.

Dr. Michael Whiddon, Ph.D., an independent criminal psychologist and director of clinical services for the Department of Corrections, testified that appellant had an IQ of 70 and that he was a borderline retar-date. He felt that appellant was not competent to stand trial as an adult. However, Dr. Whiddon stated in a letter dated September 5, 1979, that “No comment will be made concerning May’s understanding of right and wrong or his ability to contribute to his defense. This type of evaluation was not done....” He further testified:

“BY MR. KITCHENS:
Q. Doctor, you said he didn’t know what the defenses were and I just wanted to see if you knew, so you would know whether he was telling you right or not?
A. I understand.
Q. What are the defenses?
A. The defenses that I am aware of, at that time, for example, would include an appeal. Does he have the opportunity for an appeal?
Q. Yes, sir?
A. And I think that was one of the options most widely used by people who come to the penitentiary, so in the context that we were working, that is the first thing I wanted him to know if he understood the appeal process.
Q. Doctor, I’m not implying that you didn’t ask him the right questions for his situation at that time, but the truth is, isn’t it, that you were not dealing with him to determine whether he could stand trial or whether he was mentally competent to stand trial because you were not expecting him to stand trial, were you?
A. That’s correct. That is not the question I was trying to answer.
Q. I don’t mean to suggest that you were not doing your job properly at the time, but the context in which you were asking him these questions was quite different from the context in which you have been questioned today concerning his competency to stand trial, am I not right?
A. Yes, sir.”

Miss Julie Epps, May’s attorney from February, 1979, to her withdrawal on the date of the competency hearing, testified that appellant could not rationally confer with her about choices which he had, that he was unable to concentrate for more than fifteen (15) or so minutes, that he would go to sleep during her discussions with him and at times would suck his thumb. It was her opinion that appellant could not make necessary decisions in order for her to defend him and that he was not competent to stand trial. She admitted that appellant signed a retainer form expressing his wish that she and Mr. Ron Welch, attorney, represent him, that she would not permit him to sign something he did not understand, that appellant waived the privilege, that she represented appellant when he withdrew his guilty plea and she stated to the circuit judge at that time appellant knew and understood what he was doing.

Rita Grace, speech pathologist and Director of the Communications Disorder Department at the Hudspeth State Mental Retardation Center at Whitfield, testified that, in January, 1980, she evaluated appellant, who had been referred to her by one Jackie Fleming of the Jump Street Program for evaluation in the school placement program. He scored at the fourth month-fourth grade level in mathematics, at the third month-third grade level in reading recognition, and at the eighth month-third grade level in reading comprehension, spelling and general information. She gave no opinion as to May’s competency to stand trial.

Deborah Lovell, associate psychologist at Hudspeth, testified that on January 8,1980, she administered psychological tests to appellant, and, according to the composite evaluation, appellant was “functioning in the borderline of measured intelligence with receptive vocabulary being in the mild retardation range.” She expressed no opinion as to May’s competency to stand trial.

Jacqueline Fleming, director of the Jump Street Program for Mentally Retarded Juvenile Offenders, located at the Hudspeth Retardation Center, testified that “Our basic requirements are that the kid be mentally retarded, which means that his action score is ranging between 50 and 75.” A child who did not meet this score could not be admitted to the program. She said, “Now I think he is more able to communicate with his attorneys. He understands a little bit about what is happening, although I’m not sure he understands the total picture, because ... I don’t.” Mrs. Fleming expressed no opinion as to appellant’s mental competency to stand trial.

Minnie Dallas, appellant’s special education classroom teacher at Hudspeth since July, 1979, testified that May was presently functioning at the age level of an 8-year-old, and that he was doing very well in math and pretty good in both language and spelling, and was improving. She would give no opinion as to whether or not appellant “. . . fully understands the courtroom process ... to make decisions about such things as waiver of rights and legal rights ... because I don’t know them myself.”

Dr. Beth Wildman, Ph.D., a licensed psychologist, originator and former director of the Jump Street Program, and consulting psychologist to Hudspeth, testified that she had observed appellant in her capacity as consultant over a period of one (1) year. She was of the opinion that he is functioning as a ten or eleven-year-old, cannot understand the range of possible verdicts, cannot make a decision, cannot testify meaningfully in his own defense, and was not competent to stand trial because he could not understand the proceedings nor could he be involved in decisions. On cross-examination, Dr. Wildman testified that she did not do competency testing as a routine párt of her work and that testing at Hudspeth was not designed to determine whether May was competent to stand trial, but to test him for educational placement and planning. She was not a forensic psychologist, “who is defined as a person who usually specializes in issues which relate to psychology and the law.”

The prosecution introduced four (4) witnesses. Dr. Donald Guild, Director of Forensic Psychiatry at Whitfield, and a lawyer licensed to practice law in the State of Mississippi, testified that he examined the transcript of the suppression proceeding and interviewed appellant. In his opinion, appellant was competent to a reasonable psychiatric certainty to stand trial. He also testified:

“I took in consideration the discussions with counsel on their feelings of competency, their difficulties in relating to Mr. May, their difficulties in working with him. I took in consideration, and certainly placed considerable weight on the intelligence testing that was done, the discussion with the psychologist that did that. Then further, discussions with the psychologist at Hudspeth Center, at the Jump Street program, her interpretations of his behavior and her interpretations of his stay at the Hudspeth Center. Last, and certainly not least, I had an interview with Mr. May. It was brief, but that certainly is a significant part.”

The record of Dr. Guild’s testimony further indicates:

(1) Dr. Guild “routinely and regularly” performed competency interviews; May’s case involved the thirteenth such interview he had conducted that week.

(2) Dr. Guild felt he had sufficient time to interview May and formulate a valid and reliable opinion as to mental competency “. .. especially since, in this ease, [he] had extensive history ...” and the full cooperation of defense counsel in permitting him to discuss the case with Dr. Whiddon and Dr. Wildman.

(3) Dr. Guild and Dr. Stanley, a psychologist, evaluated May together as a team. After talking to the defendant’s attorneys and Bubba’s psychologist, both Guild and Stanley went over the test materials. Following a thirty-minute interview with May conducted in the presence of Dr. Whiddon and Dr. Wildman, the experts exchanged opinions, comments, and criticisms. Guild and Stanley further discussed the matter with one another after this.

(4) During cross-examination, Dr. Guild acknowledged that he and Dr. Stanley disagreed with the defendant’s psychologists. While all of the experts observed the same behavior, there was a legitimate disagreement as to what it meant and what it was. Such was not unusual. “We respect each other’s opinions. We just differ.”

Lewis McDaniel, a lay witness for the State, expressed no opinion as to May’s competency to stand trial, but he testified that he had known appellant since he was nine (9) or ten (10) years of age, that he coached appellant the past two (2) summers in Little League Baseball, that appellant was the starting left fielder and co-captain of the team and that he and appellant had no difficulty in communicating with each other.

Alton Jackson, the arresting officer, gave no opinion as to appellant’s competency to stand trial, but he stated that appellant acted “pretty normal” at the time of his arrest, that he was “lively, talking well, and everything like that.”

• Dr. Charlton Stanley, Ph.D., forensic psychologist at the Mississippi State Hospital and private practitioner, is one of two (2) “diplomates” of the American Board of Forensic Psychology practicing in the State of Mississippi, a member of the Mississippi State Board of Examiners. Dr. Stanley testified that he and Dr. Guild examined appellant the previous day, and, on the basis of that examination, together with other factors taken into consideration, he formed the opinion that appellant was competent to stand trial. In evaluating appellant, Dr. Stanley used the McGary-Lippitt criteria contained in the handbook called “Competency to Stand Trial and Mental Illness.” This publication, according to Dr. Stanley, is a standard in the profession for those who regularly do competency examinations. The bases for Dr. Stanley’s opinion that appellant was competent to stand trial were his examination of the transcript, the test results and reports of the other psychologists and professionals who had examined him before, his observations of appellant in the courtroom and his interview with appellant.

An issue was presented to the jury as to whether or not appellant was competent to stand trial. Expert witnesses testified for both the prosecution and the appellant. It is elementary that judges and juries are not bound to accept testimony of expert witnesses but may reject all or parts of such testimony. Matthews v. State, 394 So.2d 304 (Miss.1981). Worth and weight of the evidence and credibility of witnesses are for the jury to determine. Gathright v. State, 380 So.2d 1276 (Miss.1980); Ainsworth v. State, 304 So.2d 656 (Miss.1975); Davis v. State, 377 So.2d 1076 (Miss.1979); Lias v. State, 362 So.2d 198 (Miss.1978).

We are of the opinion that the competency issue was properly submitted to the jury and that the verdict is supported by the evidence. Consequently, this assignment of error, is not well taken.

II.

Was appellant criminally responsible for his acts because of “feeble-mindedness” or mental retardation?

Appellant requested and was refused the following instruction:

“The Court instructs the jury that if you find that Robert Earl May, Jr., was not responsible for his acts because of feeble-mindedness or mental retardation, then you should find him ‘NOT GUILTY.’ ”

Mississippi Code Annotated Section 99-13-1 (1972) defines “feeble-mindedness” as follows:

“The term ‘feeble-minded,’ within the meaning if this chapter shall apply to any and all persons with such a degree of mental inferiority from birth, or from infancy or early childhood, that they are unable to care for themselves, to profit by ordinary public school instruction, to compete on equal terms with others, or to manage themselves and their affairs with ordinary prudence, and consequently constitute menaces to the happiness or safety of themselves or of other persons in the community, and require care, supervision and control either for their own protection or for the protection of others. These persons denominated feeble-minded comprise those commonly called idiots, imbeciles and morons, or high grade feeble-minded persons. Feeble-minded persons may, or may not, be subject to epileptic seizures.”

Mississippi Code Annotated Section 99-13-9 (1972) states:

“When any person shall be indicted for an offense, and acquitted on the ground of feeble-mindedness, the jury rendering the verdict shall state therein such ground, and whether the accused constitutes a danger to life or property, and to the peace and safety of the community; and if the jury certify that such feeble-minded person is dangerous to the peace and safety of the community, or to himself, the court shall forthwith give notice of the case to the chancellor, or the clerk of the chancery court, whose duty it shall be to proceed with such person according to the law provided in the case of feeble-minded persons, the feeble-minded person himself being remanded to custody to await the action of the chancery court.”

The appellant contends that the court should have granted the above instruction since the proof was overwhelming that appellant was feeble-minded and, therefore, not criminally responsible in the armed robbery. The statutes mentioned above do not overrule our cases which follow the M’Naughten rulé and hold that feeble-mindedness or mental retardation is not a ground for acquittal unless at the time the accused committed the act, he did not realize and appreciate the nature and quality thereof and could not distinguish right from wrong. Harris v. State, 386 So.2d 393 (Miss.1980); Warren v. State, 285 So.2d 756 (Miss.1973). We find no merit in this assignment of error.

III.

Did the lower court abuse its discretion in sentencing appellant to a term of twelve (12) years in the custody of the Mississippi Department of Corrections in that such sentence was not in the best interest of appellant and the public welfare and constitutes cruel and unusual punishment as applied to appellant?

Under this assignment, appellant contends that due to his youth (14 years old) and mental retardation, the twelve-year sentence constituted (1) cruel and unusual punishment, and (2) an abuse of the trial court’s discretion.

Mississippi Code Annotated Section 97-3-79 (Supp.1980) states that the penalty upon conviction of armed robbery shall be from three (3) years to a maximum of life imprisonment, if the latter is fixed by the jury. Mississippi Code Annotated Section 47-7-3(d) (Supp.1980) provides that if a firearm is displayed by a person committing the crime of robbery, such person is ineligible for parole until ten (10) years of the sentence has been served. In the case sub judice both of the above sections were violated and appellant was sentenced to a term of twelve (12) years, resulting in his ineligibility for parole until ten years of that sentence has been served. This Court has held in many cases that the imposition of sentence is within the sound discretion of the trial court and that we will not review the sentence so imposed if it is within the prescribed limits of the statute. Yazzie v. State, 366 So.2d 240 (Miss.1979); Ainsworth v. State, 304 So.2d 656 (Miss.1975).

In White v. State, 374 So.2d 843 (Miss. 1979), we held a life sentence without eligibility for parole, imposed upon a 16-year-old youth convicted of armed robbery, was not cruel and unusual punishment in violation of the Eighth Amendment rights. No Mississippi case involving a 14-year-old child, who is mentally retarded with the intellect of a seven to eleven-year-old child, has been brought to our attention.

In addition to the criminal penalties discussed above, Mississippi Code Annotated Section 43-21-159(3) (Supp.1980), a part of the “Youth Court Act,” provides alternative criminal sanctions, as follows:

“(3) In any case wherein the defendant is a child as defined in this chapter and of which the circuit court has original jurisdiction, the circuit judge, upon a finding that it would be in the best interest of such child and in the interest of justice, may at any stage of the proceedings prior to the attachment of jeopardy transfer such proceedings to the youth court for further proceedings unless the child has previously been the subject of a transfer from the youth court to the circuit court for trial as an adult and was convicted, and the youth court shall, upon acquiring jurisdiction, proceed as provided in this chapter for the adjudication and disposition of delinquent child proceedings; and if any child shall be convicted by any circuit court, the trial judge, if he deems it for the best interest of such child and the public welfare, may, in his discretion, and in lieu of other statutory punishment, commit such child to any state institution now or hereafter established for delinquents, or may commit such child to the county jail for any term not in excess of one (1) year, or he may suspend sentence and release on probation, under such terms and conditions as he may prescribe, and said court shall have the power to change the custody of such child or to terminate its jurisdiction over said child in the same manner as is provided in this chapter for the youth court.” (Emphasis added)

In levying sentence on a criminal offender, a trial judge may proceed pursuant to Rule 5.13, Uniform Criminal Rules of Circuit Court Practice (1979), which provides as follows:

“Rule 5.13
BIFURCATED TRIALS
There may be bifurcated trials in all felony cases.
In all felonies in which the defendant is not subject to receive the death penalty the procedure may be as follows:
(1) There shall be a jury trial according to the constitution and law unless the jury is waived by the defendant.
(2) Upon conviction, or after a plea of guilty, there shall be a hearing before the trial judge as follows:
a. A presentence investigation shall be conducted and a report thereof shall be made, consisting of a complete record of the offender’s criminal history, educational level, employment history, and when required by the court, his psychological condition, and such other information as the judge shall deem necessary. A copy of said report shall be delivered to the defendant for use by him and his attorney.
b. The state may introduce evidence of aggravation of the offense to which the defendant has been convicted or pleaded guilty.
c. The defendant may introduce in evidence any evidence he deems necessary to contradict or supplement any
, information contained in the presen-tenee investigation report.
d. The defendant may introduce any evidence of extenuation or mitigation.
e. The state may introduce evidence in rebuttal of evidence of the defendant.
f. A record shall be made of the above proceedings. This record shall not be a part of the record on appeal but shall be maintained in the office of the circuit clerk of the trial court as a part of the record in that court.
In any case where the defendant is charged with a crime punishable by death, and the state seeks to impose the death penalty, the trial shall be conducted in accordance with Miss.Code Ann. §§ 99-19-101, 103 (Supp.1978) and decisions of the Mississippi Supreme Court. See Jackson v. State, 337 So.2d 1242 (Miss.1976), Washington v. State, 361 So.2d 61 (Miss.1978), and cases following.”

Those parts of the rule pertinent to the case sub judice are Subsections (c) and (d). After the jury returned a verdict of guilty as charged, the court recessed until 9:00 a. m. the next day for the purpose of pronouncing sentence. Upon Court convening again, the following transpired:

“BY THE COURT:
I understand the defendant wishes to present some matter for the Court’s consideration in mitigation?
BY MR. WELCH:
Yes, Your Honor, we have a couple of things we would like for the record.
BY THE COURT:
I will advise you that in the sentencing process, I will consider all of the psychological data to which there has been testimony and the evaluations and those matters that have been testified concerning the school record and his evaluation, both in the hearing on the mental competency to stand trial, and also on the trial. If you have anything further, I’ll be glad to hear you.
BY MR. WELCH:
For the record, we move the Court to defer sentencing until a later date to enable the defendant to present other testimony not available today with regard to sentencing, which, so far as the defendant knows, has not formerly been presented to the Court at any other time.
BY THE COURT:
I see no valid purpose that could be served by delaying the imposition of sentence, but I will give you an opportunity to put on any matter you have today.
BY MR. WELCH:
We would like to call Dr. Beth Wild-man
DR. BETH WILDMAN, after first having been duly sworn, did on her oath testify as follows:
DIRECT EXAMINATION
BY MR. WELCH:
Q. Will you state your name, please?
A. Beth Wildman.
Q. Dr. Wildman, have you previously testified in this case?
A. Yes, I have.
Q. In order to avoid repeating, are you familiar with — have you had an opportunity to talk with Dr. Michael Whiddon?
A. Yes, I have.
Q. And in any other way, familiarize yourself with any programs or facilities that might be available to the Mississippi Department of Corrections with regard to the treatment or education of Robert Earl May, Jr.?
BY THE COURT:
Now, Mr. Welch, I thought I made myself very clear that I will hear testimony only so far as matters in mitigation. So far as alternatives available to the Court, I am thoroughly familiar with those. I have made an extensive investigation as to the possible alternatives the Court could take. I do not need to hear any further evidence on those things. I will listen to any matter that you have in mitigation that you care to present that has not already been presented, but insofar as conversations with Dr. Whiddon or anybody else concerning any program, those matters I have already thoroughly studied and I feel that I am aware of those alternatives that are available to the Court, and so I will hear any matter in addition to anything that has already been testified to in mitigation.
BY MR. WELCH:
May counsel address the Court?
BY THE COURT:
All right, but I want you to know .that you are limited to that area as to matters pertaining to this individual defendant, pertaining to the sentencing.
BY MR. WELCH:
Your Honor, the defendant would submit to the Court information that was in the existence of the alternatives that are available to this Court to consider sentencing. There is further information based on the evidence before this Court that the defendant, Robert Earl May, Jr., has been tested and diagnosed as educable mentally retarded, and as such, would fall within the definitions of the Public Education Act for the mentally handicapped that is applicable to all programs in the State of Mississippi. Defendant’s position is that information with regard to either the existence or the nonexistence of programs specifically designed for the edu-cably mentally retarded within either the Department of Corrections, within the Youth Court, Juvenile facilities at Oakley, Columbia, is in evidence in mitigation. That is what we propose to present today. We would submit to the Court that that would be evidence in mitigation, and we ask the Court for permission to present that to the Court.
BY THE COURT:
I have already told you that I have made an exhausted study as to the alternatives available to the Court. I will hear those matters pertaining to this individual defendant. If you have nothing further to offer, then the Court is prepared to sentence the defendant.
BY MR. WELCH:
Just for the record, may counsel request, prior to sentencing, so that we might be able to assist the Court, sources of information the Court has or any pre-sentence investigation analysis that the Court may have to consider, we ask that be made a portion of the record and to be allowed to consider it before the Court passes sentence so that we might review and be able to inform the Court whether we have additional information, whether the information that the Court has in regard to this is accurate.
BY THE COURT:
I think a rather unusually exhausted study has been made of this defendant. He has been psychologically tested by several agencies of the State of Mississippi, including, of course, Dr. Whiddon at the Mississippi State Penitentiary. I have heard testimony of the various witnesses that have testified in the case here. The counsel has been furnished with a copy of a letter that Dr. Whid-don said, testified he mailed to the Court as to the psychological tests and evaluation of this defendant.
I have heard the testimony of Dr. Wild-man, Miss Julie Epps; of Mrs. Rita Grice, speech pathologist at Hudspeth Center; Miss Debra Lovell, associate psychologist at Hudspeth Center; Mrs. Jackie Fleming, Director of the Jump Street program of the Hudspeth Retardation Center; Minnie Dallas, the teacher of the Jump Street program;' Dr. Beth Wildman, psychologist at the Mental Health Center; Dr. Donald C. Guild, psychiatry chief with the Forensic Psychiatry at the Mississippi State Hospital at Whitfield; Dr. Charlton Stanley, who is a psychologist and also the various friends and acquaintances. They have testified that they knew the defendant prior to his arrest and all of those will be considered, their testimony will be all considered in the sentencing process. If you have anything additional that you care to present pertaining to the sentencing of this individual, I will be glad to hear it, but all of those matters have been considered and are a part of the record, and were, of course, furnished by the defense in a large measure.
BY MR. WELCH:
The only thing we have, Your Honor, to offer the Court at this time is evidence with regard to the act of availability of any program for the educably mentally retarded at the Department of Corrections at Oakley or Columbia, specifically for the particular defendant. We would offer evidence at this time only that the Jump Street program is the only existing program for juvenile offenders in the State which offers a specialized program for the educably mentally retarded, and that is all we wish to offer to the Court at this time.
DR. BETH WILDMAN STANDS ASIDE.”

It is obvious that the trial judge was proceeding under Circuit Court Rule 5.13, supra, because counsel for appellant were informed that the judge would consider all the expert evidence introduced on the competency hearing and on the merits of the case, and that he would hear additional matters in mitigation of the sentence. The judge stated that he had made an exhaustive study and intensive investigation as to the possible alternatives the court could take. However, there is no record of the trial judge’s knowledge of the alternatives mentioned in the sentencing hearing, and there is no way for this Court to determine what he did consider, and whether he abused his discretion under the statute and rule referred to.

We think the Legislature, in providing alternative methods of sentencing of minors, intended in cases involving special circumstances surrounding a minor defendant, that the trial judge consider seriously those alternatives enumerated in the statute and that the presence or absence of facilities for care of a minor offender be considered in mitigation of the punishment provided by statute. In our opinion, in addition to his consideration of the expert testimony, which became a part of the record on the sentencing phase, the trial judge should have placed in the record the sources and facts of his study and should have permitted appellant’s counsel to introduce evidence of the presence or absence of facilities at Mississippi State Penitentiary for care of the appellant, and the availability of other institutions or facilities which could be utilized by appellant. Therefore, we remand. the cause to the lower court for hearing further evidence of extenuation or mitigation and for sentencing not inconsistent with this opinion.

Counsel for appellant have contended throughout their argument that the trial judge and the district attorney were prejudiced against appellant on account of the publicity given the case when he first entered a guilty plea, was sentenced to the Mississippi State Penitentiary, and was permitted to withdraw the plea of guilty. They argue that the trial judge tried to vindicate himself as to the former guilty plea and sentence in the trial of the present case.

During the trial, including pre-trial and post-trial motions and discussions, there were instances of sharp conflicts between the trial judge and the attorneys for appellant. We think that the trial judge was patient and fair in the trial and that he afforded counsel the opportunity to present within the law every defense they desired. The appellant’s contention that he was denied due process and a fair trial is not sustained by the record. We have carefully considered all assignments of error not specifically addressed in this opinion, and find that they are without merit.

AFFIRMED AND REMANDED FOR A SENTENCING HEARING CONSISTENT WITH THIS OPINION.

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

      . A special program, located at Hudspeth Mental Retardation Center, for the rehabilitation of mentaUy retarded juvenile offenders.


text:
    Arnold Edward TAYLOR v. STATE of Mississippi.
    No. 52639.
    Supreme Court of Mississippi.
    June 3, 1981.
    James J. Fougerousse, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and HAWKINS, JJ.
   LEE, Justice,

for the Court:

Arnold Edward Taylor was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, Honorable William F. Coleman, presiding, for forgery and was sentenced to five (5) years with the Mississippi Department of Corrections, two (2) years of which were suspended. Taylor has appealed to this Court and assigns three (3) errors in the trial below.

Prior to January 19, 1979, approximately one hundred (100) consumer money orders mailed from a money order company to Star Supermarkets in Jackson, Mississippi, disappeared from the United States mails. On January 19, 1979, a person who identified himself as Jessie L. Stevenson appeared at a drive-in teller’s window of the Medical Center Branch of Deposit Guaranty National Bank and presented one of the money orders for payment. When asked for identification, he displayed a driver’s license which identified him as Jessie L. Stevenson, payee in the money order. The teller, Mary Ashley, cashed the money order and made a note of the tag on the car driven by the individual to be Texas # FJV 643. Later that day, the same incident occurred at the Meadowbrook Branch of First National Bank in Jackson where a person presented a similar money order for payment and identified himself as Jessie L. Stevenson. The teller, Rosie Bell Cobb, recorded the driver’s license number and paid the order.

A search warrant was obtained and, upon search of appellant’s premises, the Texas license plate # FJV 643 was found. On March 29, 1979, appellant was arrested and charged with forgery in connection with the above incidents. Separate indictments were returned and appellant was convicted on the first charge (Deposit Guaranty) and was sentenced to ten (10) years. His appeal is pending in that case. The present case involves the First National Bank incident.

The evidence at trial indicated that appellant worked for the Post Office Dispatch Annex which serviced the supermarkets ordering the money orders and also the mailing address of Jessie L. Stevenson. Mr. Stevenson testified that the driver’s license was his, that he had ordered it through the mails, that it had never been received by him, and that he had never seen the money order which bore his name. A handwriting expert testified that, although he could not positively say the money order bore the signature of appellant, from compared handwriting specimens, he was of the opinion that it was “highly probable” appellant forged the money order.

I.

Did the lower court commit error in permitting introduction of testimony about the Deposit Guaranty Bank forgery?

On the trial of the present case, Rosie Bell Cobb, teller at First National Bank, Meadowbrook Branch, testified concerning the cashing of the forged instrument, but was unable to identify appellant as the person who presented the money order. Thereupon, over objection of appellant, Mary Ashley, teller at the Deposit Guaranty Bank, Medical Center Branch, testified concerning the cashing of the money order there and positively identified appellant. He now assigns as error the introduction of that testimony since it contained evidence of a separate and distinct crime.

In Gray v. State, 351 So.2d 1342 (Miss. 1977), this Court said:

“Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter of guilty knowledge. See, Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969), cert. den., 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970).” 351 So.2d at 1345.

The testimony of Mary Ashley was competent to show the identity and guilty knowledge of the appellant, together with motive and intent. The individual identified himself by the same name, Jessie L. Stevenson, used the same type forged money orders, produced the same driver’s license, and used the same automobile and car tag. The modus operandi was identical. See Norman v. State, 385 So.2d 1298 (Miss. 1980); Harrington v. State, 336 So.2d 721 (Miss.1976); Thompson v. State, 309 So.2d 533 (Miss.1975); and Pierce v. State, 213 So.2d 769 (Miss.1968).

The lower court correctly admitted the testimony of Mary Ashley.

II. — III.

Did the lower court err in overruling appellant’s motion for directed verdict and was the verdict of the jury against the overwhelming weight of the evidence?

When the State rested, the appellant, without introducing any evidence, also rested.

In passing upon a motion for directed verdict, the lower court must accept as true all evidence offered in favor of the State, together with reasonable inferences flowing therefrom, and, if such evidence will support a verdict of guilty, the motion must be overruled. Salk v. State, 387 So.2d 751 (Miss.1980); Warn v. State, 349 So.2d 1055 (Miss.1977); Redwine v. State, 149 Miss. 741, 115 So. 889 (1928).

We are of the opinion that the evidence stated hereinabove, together with inferences flowing therefrom, presented a question for the jury as to the guilt or innocence of the appellant, and the lower court committed no error in denying the motion for directed verdict. Also, the verdict of the jury is not against the overwhelming weight of the evidence.

The judgment of the lower court is affirmed.

AFFIRMED.

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