author: LEE, Justice, for the Court: SMITH, Presiding Justice,

text:
    Jimmie Lee DAY v. STATE of Mississippi.
    No. 51535.
    Supreme Court of Mississippi.
    April 16, 1980.
    James J. Fougerousse, Jáckson, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   LEE, Justice, for the Court:

Jimmie Lee Day was convicted in the Circuit Court of Hinds County, Honorable William F. Coleman, presiding, on a charge of armed robbery and was sentenced to serve a term of thirty-five (35) years in the custody of the Mississippi Department of Corrections, with fifteen (15) years of the term suspended, twenty (20) years to be served, and probation for a period of five (5) years. Day appeals.

The principal question presented is whether or not the trial court erred in admitting Day’s oral confession in rebuttal for the purpose of impeaching his direct testimony on the trial.

On June 6, 1978, at approximately 11:00 p. m., two (2) persons entered the Majik Market convenience store, 525 North Jefferson Street, Jackson, Mississippi, and robbed the proprietor of approximately three hundred dollars ($300.00). Gregg Schweiger and Judy Lightner were working in the store, and Suzanne Rhodes was present, visiting Judy at the time.

The two men entered the store, one moved to the checkout counter and the other toward the cooler; the first man went behind the counter, displayed a gun and announced that the place was being robbed. The robbery was completed in a few minutes, and the robbers fled the scene. Arthur Sims was apprehended a short while later with the weapon, and the money was recovered. He told the officers that appellant participated in the robbery. Appellant was apprehended the next day in Canton.

While Schweiger was unable to make an identification of appellant, Judy Lightner positively identified him as the unarmed bandit and she remembered seeing his accomplice, Arthur Sims, enter and leave the store a few minutes before the robbery. Suzanne Rhodes closely observed appellant during the robbery; she identified him in two lineups, had known him prior to the robbery, and made a positive in-court identification of him.

After appellant’s arrest, he was taken to the Jackson Police Department and was interviewed by Detectives David Fondren and A1 Stubblefield. They advised the appellant of his Miranda rights and appellant requested an attorney. The detectives continued talking with him and, according to them, appellant made a free and voluntary statement, admitting his participation in the robbery. At trial, a motion was made to suppress the statement given to the detectives after appellant requested an attorney, and the trial judge sustained the motion.

During trial of the case on its merits, after the State rested, appellant took the stand as a witness in his own behalf and denied that he participated in the robbery, or that he had any knowledge of the robbery until after its occurrence. He admitted that he had driven his automobile to the scene of the robbery accompanied by Arthur Sims and three (3) other individuals, that he was outside doing some work on his automobile, that Arthur Sims and an unidentified individual ran out of the store, and told him that they had robbed it, whereupon, the appellant took his car keys from the vehicle and also fled.

Upon cross-examination of the appellant, over objection, he was asked about the oral statement taken by the detectives. He testified that he had asked for an attorney but denied having made any statement to the detectives. When appellant rested his case, the State offered in rebuttal for impeachment purpose the oral statement by appellant to Detectives Fondren and Stubble-field. Over objection, the court admitted the testimony as to the oral statement for purpose of impeachment only. He granted the following instruction:

“The Court instructs the Jury that proof of the oral statements made by the Defendant may not be considered as evidence that he committed the crime of Armed Robbery. They may, however, be used for the limited and sole purpose of ascertaining his credibility as a witness.”

The appellant contends that the action of the trial judge in admitting the testimony of Detectives Fondren and Stubblefield pertaining to the oral statement of appellant taken after he had requested an attorney, violates his constitutional rights and is prejudicial error. He relies upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) wherein the rule was stated on custodial interrogation of an accused:

“If, however, he [the accused] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. ...
* * * * *
The right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. . . . Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” 384 U.S. at 444-45, 469-70, 86 S.Ct. at 1612,1625-26, 16 L.Ed.2d at 707, 721.

The holding in Miranda has been restated many times by courts of most, if not all, jurisdictions and is so well established that it is not necessary to cite additional authority. However, the rule has been amplified and enlarged upon since Miranda.

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), Harris was indicted for selling heroin. He was questioned by the police when taken into custody, but had not been advised of his right to appointed counsel. The court excluded his inculpatory statement on the prosecution’s case in chief. Harris’ testimony at the trial contradicted and was inconsistent with the statement which he had made to the police and the trial court admitted it in rebuttal for the purpose of impeaching his credibility as a witness. The jury was instructed that such statements could be considered only in passing on Harris’ credibility and not on his guilt. There was no claim that the inconsistent statements were coerced or involuntary. In holding that the statements, although inadmissible on the prosecution’s case in chief, were admissible in rebuttal for the purpose of impeaching the credibility of Harris, the court said:

“Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.
Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. * * * Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” 401 U.S. at 225-226, 91 S.Ct. at 645-646, 28 L.Ed.2d at 4-5.

The United States Supreme Court considered the same proposition in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). The two cases differ in that no Miranda warning was given in Harris, while the warning was given in Hass. He was arrested on suspicion of burglary and, en route to the police station, he expressed the wish to telephone his attorney. The officer replied that Hass could do so as soon as they arrived at the police station. Thereupon, Hass gave inculpatory information to the officer. The statement was excluded on the prosecution’s case in chief, and Hass then testified to his innocence. The police officer was called in rebuttal and testified to the inculpatory information given him by Hass. The trial court instructed the jury that the rebuttal testimony could not be considered by it as proof of Hass’s guilt, but may be considered only as it related to his credibility. The conviction was reversed by the Oregon Court of Appeals and affirmed by the Supreme Court of Oregon on the ground that the inculpatory statements made by Hass were improperly used to impeach his testimony. The United States Supreme Court said:

“We see no valid distinction to be made in the application of the principles of Harris to that case and to Hass’ case. Hass’ statements were made after the defendant knew Osterholme’s opposing testimony had been ruled inadmissible for the prosecution’s case in chief.
As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, . and, again, making the deterrent-effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass’ case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.
We are, after all, always engaged in a search for truth in a criminal case so long as the search is surrounded with the safeguards provided by our Constitution. There is no evidence or suggestion that Hass’ statements to Officer Osterholme on the way to Moyina Heights were involuntary or coerced. He properly sensed, to be sure, that he was in ‘trouble’; but the pressure on him was no greater than that on any person in like custody or under inquiry by any investigating officer.
The only possible factual distinction between Harris and this case lies in the fact that the Miranda warnings given Hass were proper, whereas those given Harris were defective. The deterrence of the exclusionary rule, of course, lies in the necessity to give the warnings. That these warnings, in a given case, may prove to be incomplete, and therefore defective, as in Harris, does not mean that they have not served as a deterrent to the officer who is not then aware of their defect; and to the officer who is aware of the defect the full deterrence remains. The effect of inadmissibility in the Harris case and in this case is the same: inadmissibility would pervert the constitutional right into a right to falsify free from the embarrassment of impeachment evidence from the defendant’s own mouth.
* * * * * *
We, therefore, hold that the Oregon appellate courts were in error when they ruled that Officer Osterholme’s testimony on rebuttal was inadmissible on Fifth and Fourteenth Amendment grounds for purposes of Hass’ impeachment. The judgment of the Supreme Court of Oregon is reversed.” 420 U.S. at 722-24, 95 S.Ct. at 1221, 43 L.Ed.2d at 577-578.

In the present case it is not contended that the statement given to the officers was coerced or involuntary. Testimony of the officers and appellant indicates that no force, threats or promises of reward were used to obtain the statements.

This Court has applied the rule stated in Harris and Hass, supra. Booker v. State, 326 So.2d 791 (Miss.1976), while not directly involving the request for an attorney, discussed the two United States Supreme Court decisions, stated the question to be whether the confession of a defendant, inadmissible on the prosecution’s case in chief, may be used to impeach the defendant’s credibility when his trial testimony contradicts his prior statements. There, this Court held the defendant’s statement was not admissible on the case in chief, but, being voluntary, was admissible to impeach the defendant when he made statements contradictory to the confession.

In Murphy v. State, 336 So.2d 213 (Miss. 1976), the question was identical with the one here. Murphy gave statements after she had requested an attorney and the trial court held they were not admissible for that reason. In holding that the statements were admissible in rebuttal, for the purpose of impeaching Murphy and for the purpose of reflecting on her credibility, the Court said:

“In her testimony defendant denied that she told David Tindall to shoot her father to get him out of his misery. This testimony was contradicted by the deputy sheriff.
The contradictory statement of defendant was made to the deputy sheriff under conditions similar to those made by the defendant in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) in that the statements were made in both cases in response to questioning by officers after defendants requested an attorney. In Hass the defendant had been arrested when the contradictory statements were made, whereas in this case the defendant had not been arrested.
* sfc * * * *
In the instant case the statement made to the deputy sheriff was not admissible made to the deputy sheriff was not admissible by the state on its case in chief for the reason stated by the trial judge in his ruling. However, it was not the result of coercion, duress, threats or promises and was therefore admissible for the purposes of impeaching the credibility of the defendant as a witness.” 336 So.2d at 215, 216.

See also Simmons v. State, 358 So.2d 1324 (Miss.1978).

The Court further held that the accused is entitled to an instruction that contradictory statements may not be used as proof of guilt but may be considered only in passing on the defendant’s credibility as a witness, if requested by him.

Prior to Miranda, it was not mandatory that he be advised of the constitutional rights therein enumerated. His statement only was required to be free from coercion and duress and to be voluntary. Miranda imposed severe restrictions on police activity. This Court may not impose greater restrictions as a matter of Federal constitutional law, upon which this case is based, when the United States Supreme Court specifically refrains from imposing them, and should not do so as a matter of Mississippi law.

The conviction and judgment are affirmed.

AFFIRMED.

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

SMITH, P. J., and COFER, J., dissent.

SMITH, Presiding Justice,

dissenting:

The utmost temerity is required to dissent from a result arrived at by the combined wisdom of my colleagues. I do so with the greatest deference.

As I understand the majority decision, it does not deprive a suspect under interrogation of his right to be informed of what have become known as his “Miranda rights,” nor relieve his official interrogators of their duties with respect thereto.

In his isolated and helpless condition, Day was being interrogated by two officers in the interrogation room. The officers discharged their duty to inform him of his “rights,” and among other things, told Day that he had a right to have an attorney present, that if he could not afford an attorney one would be provided and that if he desired an attorney all questioning would cease until an attorney was present.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 1602 (1966):

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion subtle or otherwise. . If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. .
[T]he right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. . Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.
The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial. See Crooker v. California, 357 U.S. 433, 443-448, 78 S.Ct. 1287, 1293-1296, 2 L.Ed.2d 1448 (1958) (Douglas, J., dissenting).

Day accepted the offer of an attorney by asking that one be provided him. This request was declined or refused by the officers, the reason given being that the “clerk’s office was closed.” At this point, according to what they had just told Day, all interrogation should then have ceased. But the officers did not stop the interrogation but continued to question Day, who was, for all practical purposes, being held incommunicado. Not only was he denied his right to an attorney, but he had no access to friends, relatives or anyone else. In this situation, as the result of the continued interrogation, Day is said to have made the incriminating statements attributed to him. He was never told that any statement he made could be used at his trial as an “impeachment.”

Upon the above facts, the trial court sustained Day’s motion to suppress the statements. However, upon the trial, when Day sought to exercise his statutory right to testify as a witness in his own behalf, the court permitted him to be cross-examined as to the interrogation and admitted the inculpatory statements said to have been obtained after his request for an attorney had been rejected. This procedure is justified because, it is suggested, the jury is told that the incriminating statement is only to be considered by way of “impeachment,” and is to be forgotten on the issue of guilt.

The action of the trial court in sustaining the motion to suppress, I respectfully "submit, amounted to a correct ruling that the officers, under the circumstances, had illegally obtained the statements. With the testimony of the officers, admitted by the trial judge, before the jury, that Day had confessed or made inculpatory statements to them, the idea that the jury will not consider such testimony upon the issue of guilt but will limit it in some way to impeachment of Day as a witness, I find it impossible to accept.

Day, in the interrogation room with the two officers, having just been told by them that if he desired an attorney one would be provided, and that interrogation would cease until an attorney was present to represent him, almost in the same breath was told that his request made in response thereto would not be granted because the “clerk’s office was closed.” Again, contrary to what he had just been officially told, the interrogation continued without an attorney until the incriminating statements had been obtained. Such statements, I submit, must be considered as having been obtained illegally, and the rejection of Day’s effort to exercise his right to an attorney, followed by continued interrogation, must be considered coercion, rendering the results of the interrogation inadmissible as evidence against him, whether on the case in chief or by way of impeachment.

It appears that we have now reached a situation which can only be described as anomalous. On the one hand we say that the law requires officers to explain his Miranda rights to a suspect under interrogation, while at the same time we approve the use of incriminating statements obtained by interrogators who blithely ignore the efforts of a suspect to exercise such rights. While conceding, apparently, that exclusion of a statement thus illegally obtained as part of the prosecution’s case is proper, we allow such statements to be introduced by way of cross-examination of a defendant who testifies as a witness. In my view, it is not in keeping with human nature or common human experience to imagine that this distinction is not one of semantics, rather than of reality and substance.

Day was faced with a true dilemma. He was presented with two alternatives, each of which was equally deadly, no matter which alternative he chose. He discovered at his interrogation that the officers had not meant a word of what they had told him as to his rights and that no attorney was going to be provided him, notwithstanding his request. Moreover, and again contrary to what he had been told, the interrogation did not cease but was continued.

Nor was the choice offered Day of the same kind as the choice confronting a defendant who, having been previously convicted of felony, must elect between giving up his right to testify to establish his defense, or to testify and thus subject himself to impeachment by proof of his former conviction. In such a case, a former conviction is the result of the defendant’s own unlawful act. Incriminating statements attributed to Day were products of his unlawful interrogation by representatives of the State and the denial by them of his acknowledge legal rights.

There is no contradiction of the fact that Day was denied an attorney after informing his custodians that he desired one. Nor is it controverted that the interrogation of Day, in his heavily disadvantaged situation, continued until the statements were obtained. His request for an attorney, isolated as he was from friends and without advice or counsel, in the interrogation room with the two officers who had him in custody, was in direct contravention of rights about which he had just been informed.

In my humble view, however desirable and necessary the enforcement of the criminal laws may be, it must be done without resort to illegal methods. A confession, or incriminating statement, obtained under the circumstances in this case should remain incompetent for any purpose.

If the rule approved in the majority opinion is to be adhered to, we should declare quite frankly and clearly for the benefit of the bench and bar, as well as law enforcement officers, that statements obtained by interrogators from a suspect in violation of the latter's Miranda rights are nevertheless admissible in evidence, discarding the “distinction” as to whether such statements are used in chief, in rebuttal or on cross-examination. In my judgment it is not in keeping with traditional notions of fair play and substantial justice to require officers to inform a suspect that he has certain rights at his interrogation and at the same time approve the action of the officers in completely ignoring the attempts of the suspect to exercise such rights. If we should continue to require that officers repeat the Miranda formula at interrogation of suspects, they should be required to go one step further, they should inform the suspect of a very material fact; although his request for an attorney is ignored and the interrogation continues unabated, if he makes a statement it can be used against him in evidence at his trial as an impeachment if he takes the stand. If the suspect is not made aware of this there is a fatal deficiency in the warning.

COFER, J., joins in this dissent.

      . The appellant here requested and was granted the instruction by the trial court.

      . Oregon v. Hass, supra.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Sarah Lubritz PASTERNACK v. Ronald R. LUBRITZ.
    No. 51823.
    Supreme Court of Mississippi.
    April 23, 1980.
    Zachary & Gillespie, Dave A. Matison, III, Hattiesburg, for appellee.
    Zuccaro, Riley, Pintard & Brown, Walter Brown, Natchez, for appellant.
   Appeal from Chancery Court, Forrest County; Sebe Dale, Jr., Chancellor.

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

AFFIRMED.


author: BOWLING, Justice, for the Court:

text:
    J. Holmes RYAN v. Don M. WARDLAW and Shady Grove Presbyterian Church.
    No. 51785.
    Supreme Court of Mississippi.
    April 23, 1980.
    As Amended On Rehearing Denied May 14, 1980.
    Freeland & Gafford, T. H. Freeland, III, Oxford, for appellant.
    Sullivan, Hunt, Spell, Henson & Chapman, F. Ewin Henson, III, Clarksdale, for appellees.
    Before SMITH, P. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice, for the Court:

This appeal involves the application of Mississippi Code Annotated section 15-1-69 (1972), commonly known as the “saving statute,” in regard to the general statutes of limitation. This section reads as follows:

If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiff’s death, commence such new action, within the said one year.

The case arose in the Circuit Court of the First Judicial District of Panola County and is an appeal by appellant, J. Holmes Ryan, from an order dismissing his second suit as being barred by the six-year statute of limitations.

Appellant was injured in a motor vehicle accident on October 16, 1965, when he was sixteen years of age, having been born on August 8, 1949. For some reason not involved in the determination of this appeal, suit was not brought until October 24,1975, several years after appellant had reached his majority, but well within the six-year limitation period. The First Judicial District of Panola County has two terms of court each year of twelve days each. On October 6,1976, the last day of the September, 1976, term, there was placed in the court minutes an unsigned document styled “Dismissed,” which stated that the cause was being dismissed as a stale case. On November 4, 1976, appellant filed a motion to reinstate the cause on the docket, setting out under oath the history of the cause since its filing and why it had not been tried during the two 1976 terms of court. The motion clearly reveals that there had been no dilatory actions on the part of any party to the suit, and that it was not ready for trial because of extensive discovery due to the period of time since the plaintiff's injuries occurred. The lower court obviously recognizing the clear error in dismissing the cause, entered an order on November 2, 1976, reinstating the cause on the docket of the court.

After the reinstatement, both parties filed further pleadings and discovery documents in the cause. On July 6, 1977, the defendants filed an instrument challenging the jurisdiction of the court and requesting that the cause be dismissed for the reason that when the dismissal order was placed in the court minutes on the last day of the September, 1976, term, the day the minutes are normally signed, the court thereafter had no jurisdiction to reinstate the cause. The court agreed with this contention and on July 25,1977, executed an order “removing the cause from the issue docket” under the instrument filed by appellees “challenging jurisdiction.”

On August 17, 1977, appellant refiled a separate suit which was essentially the same as the original cause. It is admitted that this suit was filed a few days beyond six years after appellant had reached his majority. On the affirmative defense of appellees alleging the statute of limitations of six years, the cause was dismissed by the lower court for that reason on March 19, 1979.

Appellant contends that the “saving statute” [Code section 15-1-69], as hereinbefore set out, applies both from the date of the unsigned dismissal on October 6, 1976, on the ground that the cause was stale, and the order of dismissal for lack of jurisdiction executed on July 25,1977. The refiling of the suit on August 17,1977, was obviously within one year of either or both of the dismissal orders.

It is not necessary to decide whether or not Code section 15-1-69 applies to the dismissal of the cause as being stale on October 6, 1976, and we do not make a finding on this issue here.

However, we find that section 15-1-69 applies to the order of dismissal for lack of jurisdiction executed and entered by the court on July 25, 1977. This Court has spoken to this issue on at least two occasions. In the case of Hawkins v. U. & N. Insurance Company, 110 Miss. 23, 69 So. 710 (1915), the opinion involved an interpretation of the statute in question as it applied to causes dismissed for lack of jurisdiction. The Court said:

The ground upon which the decree was reversed was that the cause was not one of equity cognizance, and since the form in which the action was brought — that is, combining a number of separate and independent causes of action in one suit— was such that no court was authorized to try it over the protest of the defendants, it was not saved by the provisions of section 147 of the Constitution. Had it not been for the form of the action, although the cause was not one of equity cognizance, the decree would either not have been reversed at all, or, if reversed, the cause would have been remanded to the court which could “best determine the controversy.” So that, when reduced to its last analysis, the dismissal of the former action was for “matter of form,” and therefore the cause comes strictly within the language of the statute.
But we do not understand that the action which was dismissed, in order to be duly commenced within the meaning of the statute, must necessarily have been commenced in a court having jurisdiction of the subject-matter. On the contrary, we think one of the designs of the statute, with which section 147 of the Constitution is in keeping, is to protect parties who have mistaken the forum in which their causes should be tried, who simply entered the temple of justice by the door on the left, when they should have entered by the door on the right. In the language of the Supreme Court of West Virginia, in Tompkins v. Pacific Ins. Co., 53 W.Va. [479] 484, 44 S.E. [439] 441, 62 L.R.A. 489, 97 Am.St.Rep. [1006] 1011: “It is a highly remedial statute and ought to be liberally construed for the accomplishment of the purpose for which it was designed, namely, to save one who has brought his suit within the time limited by law from loss of his right of action by reason of accident or inadvertence, and it would be a narrow construction of that statute to say that because, if plaintiff had, by mistake, attempted to assert his right in a court having no jurisdiction, he is not entitled to the benefit of it.”
Moreover in Taft v. Stow, 174 Mass. 171, 54 N.E. 506, the supreme judicial court of Massachusetts, in construing a statute similar, though not identical, with the one here in question, in that it did not require the first action to be duly commenced, held that the dismissal of an action for want of jurisdiction of the subject-matter was a dismissal for matter of form, and we do not understand counsel for appellee to, and they could not successfully, contend that an action defective only in matter of form was not duly commenced within the meaning of the statute. The true meaning of this statute is, in our judgment, as was said by Shaw, C.J., in Coffin v. Cottle, 16 Pick. (Mass.) 386, and quoted with approval in Woods v. Hough-ton, 1 Gray (Mass.) 580, wherein the statute under consideration was, in all respects, substantially the same as the one here in question, that:
“Where the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which he can remedy or avoid by a new process, the statute shall not prevent him from doing so, provided he follows it promptly, by suit within a year.”

In the case of Smith Enterprise Company, Inc. v. Lucas, 204 Miss. 43, 36 So.2d 812 (1948), this Court again construed the statute in question in regard to the dismissal of the suit for lack of jurisdiction. The Court stated:

In Hawkins v. Scottish Union & Nat. Ins. Co., 110 Miss. 23, 69 So. 710, this Court held that a dismissal of a suit because of want of jurisdiction of the subject matter is a dismissal for matter of form within the purview of Section 744. [Now Code section 15-1-69].
Hence this suit being filed within a month of the dismissal of .the suit in the Federal Court it is within the one year saving provision of Section 744.

It is readily seen that the above recited history of this cause and its final dismissal for lack of jurisdiction is much stronger for invoking the “saving statute” than in Smith, supra, where the original suit was filed in Federal Court. There is much more reason to invoke the statute here where admittedly the original dismissal supposedly on the ground of the case being stale was clearly erroneous.

Appellees contend that the order of July 25, 1977, was not an order dismissing the cause for lack of jurisdiction — that the case was never on the docket of the court to be dismissed. A look at the record answers this contention.

The order of November 2, 1976, as a result of appellant’s verified motion to reinstate, clearly “reinstated” the case on the court’s docket, whether proper or not. The case remained on the docket through the March, 1977, term. The minutes of that term were signed with the case on the docket the same as any other case that might be dismissed later for various reasons. The order of July 25, 1977, actually stated that appellees were “challenging jurisdiction.” The sole reason the case was taken from the docket was that it was there “without jurisdiction.”

Under Code section 15-1-69, the second case was filed within the limitation period. It is, therefore, necessary to remand the case for further proceedings.

Also before us is the motion of appellees to strike a portion of the record which motion was heretofore passed and brought forward for our action when the case is considered on the merits. Now after careful consideration, the appellees’ motion to strike is overruled.

REVERSED AND REMANDED.

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


author: BROOM, Justice, for the Court:

text:
    H. L. WOMACK and wife Pat Womack v. H. R. NOBLES, Superintendent of Education, Petal Municipal Separate School District, Harlan Daughdrill, Superintendent of Education, Forrest County, Mississippi, and John A. P. Carter, III, President of the Board of Supervisors, Forrest County, Mississippi.
    No. 51822.
    Supreme Court of Mississippi.
    April 23, 1980.
    William R. Rigdon, Ellisville, for appellants.

      Robert F. Drake, Hattiesburg, for appel-lees.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   BROOM, Justice, for the Court:

Sixteenth section leasing procedures form the background of this case, appealed from the Chancery Court of Forrest County. There the complainants, appellants here, H. L. Womack and wife Pat Womack sought confirmation of their purported lease. From an adverse decree, adjudicating as void their purported lease, the Womacks seek reversal. We affirm.

On February 21, 1979 the Womacks filed their bill to confirm their sixteenth section lease dated August 24, 1976, purportedly executed by lessors: The Forrest County Board of Supervisors and Forrest County Superintendent of Education. The defendants (Board of Supervisors, County Superintendent of Education, and Superintendent of the Petal Municipal Separate School District) responded by filing a plea in bar contending that the lease was invalid under Mississippi Code Annotated § 29-3-1 (1972, Amended) — argument being that § 29-3-1 mandates that the lease should have been submitted to and approved by the Petal Municipal Separate School District Board of Trustees (which was not done). Asserted by the plea in bar was the fact that, as appeared on its face, the lease had not been submitted to and approved by the Petal school authorities. Accordingly, the defendants prayed that the bill against them be dismissed and the lease decreed as void. By final decree dated March 30, 1979, the lower court sustained the plea in bar and held the lease invalid for non-compliance with § 29-3-1, supra, and the appeal here is from the decree adverse to the Womacks.

The Petal Municipal Separate School District came into existence on July 1, 1976 when it was carved out of the Forrest County School System. Since that date Petal Municipal Separate School District has been a legal entity having its own board of trustees and subject to and vested with all the rights, powers and obligations according to the statutes germane to such school districts. Within the Petal Municipal Separate School District is located certain sixteenth section lands held in trust by the State of Mississippi for the benefit of educable children residing within the district. Part of said sixteenth section lands are those lands in which the Womacks claim a leasehold interest, confirmation of which is at issue. Nearly two months after creation of the Petal Municipal Separate School District, on August 24, 1976, the Womacks applied to the Forrest County Board of Supervisors to lease the sixteenth section property involved here. At this time the property was part of the Petal Municipal Separate School District. Favorable action upon the application was taken by the Forrest County Board of Supervisors, the County Superintendent of Education, and the Board of Trustees of the Forrest County School District. Such approval was purportedly effectuated without the application ever having been received by or submitted to the Petal Municipal Separate School District or its officers or trustees, and which authorities never approved the lease application.

When the Petal Municipal Separate School District authorities discovered the irregularities pertaining to the purported lease, the School Board attorney by two letters (one in December 1978 and another the following month) offered the Womacks an opportunity to renegotiate the controversial lease. However, the parties failed to negotiate a new or valid lease and the Womacks filed their bill.

The question here is whether or not the purported lease was invalid for failure of the Petal Municipal Separate School District Trustees to receive and approve the purported lease. Mississippi Code Annotated § 29-3-1 (1972), prior to its 1978 amendment, provided in part as follows:

§ 29-3-1. Board of Supervisors to have control — [leases]—except where a special municipal separate school district embraces whole county.
(1) The county boards of supervisors of the several counties wherein there are situated any sixteenth section school lands, or lands in lieu thereof, under the general supervision of the State Land Commissioner shall have control and jurisdiction of said school lands and of all funds arising from any disposition thereof heretofore or hereafter made; provided, that no action of any board of supervisors with regard to the leasing of sixteenth section lands, or lands in lieu thereof, shall be valid unless approved by a majority of the membership of the board of trustees of the school district or districts in which the section or portion thereof proposed to be leased is located.

Upon the facts presented the lower court correctly construed the statute quoted above, and in his well-reasoned opinion ruled that the statute in effect required:

[T]hat no action of any Board of Supervisors, with regard to the leasing of the 16th Section Lands, shall be valid unless approved by a majority of the membership of the Board of Trustees of the school district in which the section or portion thereof proposed to be leased is located.

The lower court was eminently correct in ruling:

[T]hat the lease which is here before the Court, asserted by Mr. and Mrs. Womack, as vesting in them a twenty-five (25) year lease-hold interest in this land is within the purview and within the applicability and the provisions of this statute. And, I conclude that that lease as action of the Board of Supervisors of Forrest County, is not valid unless approved by a majority of the membership of the Board of Trustees of this instance, The Petal Municipal Separate School District. It appears from the Minutes of that District, together with the testimony of the Secretary member of that Board of Trustees and the Superintendent of that District, that this lease has never, to this date, been presented to that Board of Trustees for its approval so that a requisite procedural step to the validity to the lease has not been accomplished. .

As stated by us in Tally v. The Board of Supervisors of Smith County, 323 So.2d 547 (Miss.1975):

All persons are charged with knowledge of the provisions of statutes and must take notice of the procedure adopted by them and when that procedure is not unreasonable or arbitrary there are no constitutional limitations relieving them from conforming to it. (323 So.2d at 548).

Section 29-3-1, supra, in the language set forth herein, was in full force and effect when the Womacks in 1976 obtained their purported sixteenth section leasehold interest at issue here. Compliance with the legislative enactment, as stated in the opinion of the lower court, must accompany the execution of sixteenth section leases.

In their briefs, the Womacks set forth a number of legal propositions including several interesting maxims, and their assertion that their lease was no worse than “voidable”. Central to the case is .whether the Womacks complied with § 29-3-1, as its language existed on August 24, 1976 when they filed their application. Obviously, such compliance was lacking. The lower court precisely and correctly decreed that:

[T]he subject lease was and is not valid because it did not. comply with the express and explicit terms of Mississippi Code Section 29-3-1, as amended, March 14, 1974, said statute empowering the board of supervisors to grant the lease only pursuant to said Section and that as a result of this noncompliance with said Section, that the Complainants have been tenants at will and that they are not entitled to have the relief sought in their Bill of Complaint but rather that the Plea-in-Bar raised by the Defendant H. R. Nobles, Superintendent of Education, Petal Municipal Separate School District, is effectively raised and bars the action which has been here presented to the Court.

Affirmance must be ordered here where the subject sixteenth section lands are held in trust for educational purposes, that is, to support public education.

AFFIRMED.

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

      . Mississippi Code Annotated § 29-3-107 (1972) provides compensation in proper cases may be decreed for costs of improvements, etc. to the land made by holders of void leases. In the instant case the bill sought only a “decree of confirmation” without praying for any alternative or general relief.


text:
    Johnny Lee EVANS v. STATE of Mississippi.
    No. 51851.
    Supreme Court of Mississippi.
    April 23, 1980.
    Charles C. Pearce, Union, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   BROOM, Justice, for the Court:

Obscene language used in a telephone call was the gist of the offense for which Johnny Lee Evans (defendant) was convicted in the Circuit Court of Newton County. From his conviction and sentence of two years imprisonment, he appeals contending that (1) the evidence was insufficient, and (2) erroneous evidentiary rulings were made below. We reverse.

According to the evidence, on March 6, 1979, a Mrs. Williams received an obscene telephone call from someone she described as having a black male voice. There is no need for repeating the language which unquestionably was obscene. A “trap” or holding device, which had previously been placed on Mrs. Williams’ telephone, caused an open connection to be maintained between her telephone and the line of the individual who dialed the number. By means of the trap, the call was traced to a party line in a rural area of Newton County. Five telephone subscribers, including the defendant’s mother, Clementine Evans, had telephones on the party line. It is pointed out that the “trap” did not lead to a specific telephone or person on the line but led only to the party line.

Testimony established that four of the customers on the party line did not make the obscene call to Mrs. Williams. The matter was investigated by two Newton County deputy sheriffs who testified that they went to Clementine Evans’ residence where they picked up the telephone and found an open connection between the telephones of Mrs. Evans and Mrs. Williams (receiver of the obscene call). Other testimony of the two law officers was that upon their arrival at the Evans residence, the defendant Johnny Lee Evans was nearby and ran into the woods.

WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE CONVICTION. OF THE DEFENDANT? We think the testimony as outlined and summarized failed to establish the defendant’s guilt beyond a reasonable doubt. There was a total lack of any testimony as to the identity of the persons who may have been in the Evans residence at the time the obscene call was made. Likewise, no testimony established that the defendant made the call, or was in the Evans residence at the time the call was made.

One of the law officers who testified stated that when he arrived at the Evans residence, the defendant was not there but at his grandfather’s house nearby. The testimony failed to clearly establish who ordinarily resided in Mrs. Evans’ residence, but testimony did indicate that more than one male child had been seen near the house. Undisputed testimony showed that another child (not the defendant), Mrs. Evans’ stepson, lived next door approximately 25 feet from her residence.

As is true in all criminal cases, the state had the burden of proving beyond a reasonable doubt the identity of the defendant as the one guilty of the offense charged, but study of the record reveals that the state failed to establish who made the obscene call. Younger v. State of Mississippi, 301 So.2d 300 (Miss.1974) is a case upholding the sufficiency of the evidence where Younger was convicted of making an obscene telephone call. In that case, the state’s evidence included use of the “trap” just as is true in the present case. There as here when the one receiving the call received it, the telephone was left “off the hook” and thereby the call was traced to the house in which Younger resided with his mother (not a party line). In that case, Younger’s mother told the investigating officer that the defendant “was the last person to use the telephone” but the present case lacks such evidence. More importantly, in Younger the state’s evidence included a confession freely and voluntarily given by defendant Younger that he made the obscene telephone call just as he was charged. Because the evidence against Younger, including the confession, was so strong we held that “no other verdict than that reached by the jury could be expected. Miss. Supreme Court Rule 11 (1967).” (301 So.2d at 305). In the present case, the evidence against the defendant failed to establish his guilt beyond a reasonable doubt, and at the most merely established a strong suspicion that he was the guilty party. Accordingly, the conviction cannot be upheld.

REVERSED AND DEFENDANT DISCHARGED.

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


author: WALKER, Justice, for the Court:

text:
    Benjamin Douglas LINDSEY and Lucky Star Industries, Inc. v. Zequiel MONTEZ et al.
    No. 51864.
    Supreme Court of Mississippi.
    April 23, 1980.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Carnathan, Davidson & Wright, Glen H. Davidson, Tu-pelo, for appellants.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy Mitchell, III, Gene Barton, Tupelo, for appellees.

      Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice, for the Court:

This appeal arises from the Circuit Court of Lee County, Mississippi, where Zequiel Montez and his wife, Juana, sued Benjamin Douglas Lindsey and his employer, Lucky Star Industries, Inc., for injuries resulting from a traffic accident. Judgment was entered on a jury verdict for Mr. and Mrs. Montez in the amount of $5,000.00 and $15,-000.00, respectively. From that judgment the defendants have appealed.

We have recently considered a companion case, Astro Transport, Inc. v. Zequiel Mon-tez, 381 So.2d 601 (1980). For the same reasons stated in that opinion, we must reverse and remand for a new trial. The trial court improperly excluded portions of the deposition of the highway patrolman who investigated the accident.

REVERSED AND REMANDED.

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


text:
    Edward WASHINGTON v. STATE of Mississippi.
    No. 51777.
    Supreme Court of Mississippi.
    April 23, 1980.

      Jim Waide, West Point, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice, for the Court:

Convicted as a second offender of possession of intoxicating liquor under Mississippi Code Annotated section 97-31 — 27 (1972), Edward Washington appeals from the Circuit Court of the First Judicial District of Chickasaw County. He argues the court below erred in overruling his motion to suppress evidence (eleven half-pint bottles of gin and three half-pint bottles of whiskey) seized during a search of his home pursuant to a defective warrant detailing insufficient underlying facts and circumstances to provide a basis for a judicial determination of probable cause.

Testifying at the suppression hearing, Justice Court Judge Arthur King described how he summarily issued the warrant:

Q. Who came out there that day to get the search warrant?
A. Mr. Tadpole, Mr. Fred Clark I believe, and the sheriff had called me and told me they was (sic) coming out.
Q. Is that all the sheriff told you when he called?
A. Yes sir.
Q. What did they tell you when they got there?
A. They wanted a search warrant.
Q. Tell you anything else?
A. No sir. I swore them in, asked them did they have probable cause from a responsible source, so help you God, and they said I have.
Q. Did you ask any other questions?
A. No sir.

While Judge King on cross-examination stated that he ordinarily perused the papers presented upon application for a search warrant, he reaffirmed that the officers stated no facts beyond those appearing on the affidavit.

Because a judicial determination of probable cause is essential to the issuance of a search warrant, absent exigent circumstances, not present here, this Court in reviewing the question of compliance with the Fourteenth Amendment’s guarantee against unreasonable searches and seizures must restrict its consideration to the facts presented to Judge King and regard as immaterial facts which were available but not presented. Northcutt v. State, 206 So.2d 824, 827 (Miss.1967); Murphy v. State, 195 So.2d 519 (Miss.1967); Walker v. State, 192 So.2d 270, 273 (Miss.1966); O’Bean v. State, 184 So.2d 635 (Miss.1966). Neither can we consider the fact that the invalid search revealed contraband. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

In the “underlying facts and circumstances” portion of the affidavit, we find only the following: “On the evening of June 17, 1978 about 8:00 I received a call from Deputy Carl Craig that after several observations of Edward Washington over a period of time that he was apparently selling whiskey.” We find this language insufficient as a matter of law to satisfy the standards laid down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). See United States v. Lyon, 567 F.2d 777 (8th Cir. 1977).

While it is true that search warrant affidavits must be interpreted in a common sense manner with appreciation for the fact that non-lawyers prepare them in the haste of criminal investigations, Meyer v. State, 309 So.2d 161, 165-66 (Miss.1975), it is equally well established that no interpretation may excuse the absence of sufficient underlying facts and circumstances to provide a rational basis for a neutral judicial determination of probable cause. Walker v. State, supra; O’Bean v. State, supra. The affiant in this case need only have briefly stated in ordinary language the substance of the “observations” which led Deputy Craig to believe probable cause existed to search Washington’s home. Instead, he used the word “apparently” and in so doing left the purportéd underlying facts and circumstances nebulous and conjectural at best.

If the exigencies had been such that a delay in procuring a valid warrant would have created a substantial risk of imminent destruction of contraband or the like, the warrant requirement could have been excused; but where time permits the constitution requires allegations of probable cause supported by a statement of underlying facts or circumstances so that a judicial determination of probable cause might be made. The inconvenience this rule creates for law enforcement officials is mandated by the dictates of the constitution. A supportable finding by the court on the suppression hearing that the officers acted in “good faith” does not alone fulfill the constitutional requirement.

In view of our opinion on the motion to suppress we" do not reach the other assignments of error.

REVERSED AND REMANDED.

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


text:
    Ellis V. WARREN v. W. Larry SMITH-VANIZ, et ux.
    No. 51814.
    Supreme Court of Mississippi.
    April 23, 1980.
    Sim C. Dulaney, Lumberton, for appellant.
    Montgomery, Smith-Vaniz & Stater, C. R. Montgomery, Canton, for appellees.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice, for the Court:

On April 6, 1978, Ellis V. Warren filed a bill of complaint in the Chancery Court of Madison County, seeking payment for services rendered by Warren in remodeling the Smith-Vaniz residence. Warren’s cause of action accrued on July 31, 1975, when after completing the services he demanded payment.

Properly finding the bill outside the jurisdiction of the chancery court, the chancellor transferred the action on August 23, 1978, to the Circuit Court of Madison County, where the pleadings lay dormant until April 16, 1979, when Mr. and Mrs. Smith-Vaniz filed a motion to dismiss because of Warren’s failure to file a declaration within thirty days of the transfer as required by Mississippi Code Annotated section 11-1-39 (1972). Evidently attempting to overcome his tardiness, Warren filed a declaration on the original cause of action on April 23, 1979. Later, May 4,1979, the court entered its order sustaining the motion to dismiss without prejudice. Thereafter Mr. and Mrs. Smith-Vaniz answered the declaration, which had been given a new docket number, and asserted a plea in bar invoking the three-year statute of limitations on open accounts. On June 12, 1979, the court sustained the plea in bar, stating that it had “dismissed [the case] on May 4, 1979, because the declaration had not been filed within the time ordered by [MCA § 11-1-39 (1972)] after the case was transferred from the chancery court.” Warren appeals this decision.

The dispositive statute follows:

§ 11-1-39. Proceedings in transferred causes.

When the papers have been deposited in the court to which the cause was transferred, all the parties to the proceeding shall take notice of the fact of the transfer; and the complainant or plaintiff shall file his declaration or bill in the court to which the cause was transferred within thirty days, unless the court, judge, or chancellor shall restrict the time or grant further time; and the defendant shall plead within thirty days thereafter, unless the time, by like means, be restricted or extended. And the cause shall be proceeded with as if it had been originally begun in that court, as of the date on which the cause was originally instituted (emphasis supplied).

The statute employs mandatory language directing the litigant who instituted the transferred suit to prosecute his cause promptly at peril of dismissal. The complainant must either amend his pleadings or move for additional time within thirty days of the transfer. In this case Warren did neither, and his belated attempt to cure the delay by filing a declaration more than seven months after the date of the order came too late, in our opinion. Although we think the order of dismissal should have been with prejudice, this error was cured by the circuit judge’s later order of June 12 sustaining the plea in bar.

We note in passing that the general one-year “savings statute,” Section 15-1-69 (1972), vis-a-vis Section 11-1-39 (1972), creates a somewhat anomalous situation, placing litigants whose actions have been transferred in a- more restrictive position with respect to time than litigants whose actions have been dismissed outright for other “matters of form.” However, the specific statute supersedes the general to the extent of any discrepancy, and the legislature in Section 11-1-39 specifically laid down a thirty-day limit for the filing of pleadings required in transferred actions. In failing to observe that limit, Warren did not abide by the express legislative intent. He therefore cannot now complain that the circuit court held his action barred.

AFFIRMED.

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


author: SUGG, Justice for the Court:

text:
    Cynthia BROWN v. STATE of Mississippi.
    No. CC-986.
    Supreme Court of Mississippi.
    April 30, 1980.

      Barnett, Montgomery, McClintock & Cunningham, Ross Barnett, Jr., Hermel Johnson, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   ON MOTION TO SET ASIDE JUDGMENT OF CONVICTION AND REMAND FOR A NEW TRIAL

SUGG, Justice for the Court:

Cynthia Brown was convicted in the Circuit Court of the First Judicial District of Hinds County for forgery and sentenced to twelve (12) years in the penitentiary. Defendant timely perfected her appeal to this Court by filing an appeal bond on August 17, 1977.

The record was not filed in this case and on March 27, 1979, the Attorney General filed a motion to affirm defendant’s conviction. The motion was sustained on April 16, 1979. On May 15, 1979, we sustained defendant’s motion to rescind affirmation of conviction and granted defendant thirty (30) days in which to file a transcript or a bill of exceptions.

Defendant filed a motion to set aside the judgment of conviction and to remand for a new trial. She alleged in her motion that she is unable to file a transcript of the testimony at her trial because the court reporter’s notes have been lost and, because of passage of time, it is impossible to reconstruct the testimony by a bill of exceptions.

The Attorney General filed a response in which he asserts:

Due to circumstances beyond the control of the official court reporter and through no fault on her part or on the part of appellant, her counsel, or the state’s attorney, the notes and/or tapes of the proceedings at trial were lost and cannot be found after diligent search.
Due to the passage of time since the 1977 trial of this case, it is impossible to reconstruct the record by a bill of exceptions.

The Attorney General then suggests that justice requires reversal of the conviction and a remand for a new trial.

Under the circumstances set forth above, we hold defendant is entitled to a reversal of her conviction and to a retrial on the indictment filed against her.

REVERSED AND REMANDED FOR A NEW TRIAL.

All Justices concur.


author: COFER, Justice, for the Court. BOWLING, Justice,

text:
    Roy CARLEY v. STATE of Mississippi.
    No. 51658.
    Supreme Court of Mississippi.
    April 30, 1980.

      Joe 0. Sams, Jr., Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   COFER, Justice, for the Court.

Appellant Roy Carley was indicted on a state of facts by Mississippi Code Annotated, section 97-5-23 (1972), made a crime and was convicted on a trial of that indictment.

The sole assignment of error is that the prosecution and conviction were under a statute which is unconstitutional and violates the equal protection clause in that it applies only to male persons.

Unfortunately, the assignment of error is well taken, and in Ta.tro v. State, 372 So.2d 283 (Miss.1979), we held the statute unconstitutional. We have no alternative but to reverse the conviction and discharge the appellant thereon.

We, however, hold the appellant for further action of the grand jury on any other charge or charges to which the facts in the present record may point. Catchot v. State, 374 So.2d 807 (Miss.1979).

Appellant’s separate petition to reverse and discharge is by this decision rendered moot and is denied.

REVERSED AND DISCHARGED ON CONVICTION OF FONDLING; HELD TO GRAND JURY FOR ITS FURTHER CONSIDERATION AND ACTION.

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

BOWLING, SUGG and LEE, JJ., dissent.

BOWLING, Justice,

dissenting:

I respectfully dissent from the majority in this case for the reasons set out by Justice Sugg in his dissenting opinion in Tatro v. State, 372 So.2d 283 (Miss.1979.)

SUGG and LEE, JJ., join in this dissent.


text:
    Pleas SCOTT, Jr. v. STATE of Mississippi.
    No. 51826.
    Supreme Court of Mississippi.
    April 30, 1980.

      Jack R. Jones, III, Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, C. J., and LEE and BOWLING, JJ.
   BOWLING, Justice, for the Court:

Appellant was indicted, tried and convicted of the crime of armed robbery in the Circuit Court of Leflore County. Several alleged assignments of error are presented on this appeal. It only is necessary to consider the first assignment as it requires the cause to be reversed and remanded for a new trial. This assignment is that the trial court erred in overruling appellant’s motion to suppress certain statements and evidence resulting from those statements.

After the robbery occurred, appellant was arrested by Deputy Sheriff Charlie Cooley, who had known the appellant’s family for many years. Appellant was carried to the sheriff’s office and admittedly he was given full and proper Miranda rights warnings. He was interrogated on two separate occasions, Saturday, January 27, 1979, and Sunday, February 4, 1979. The alleged admissions and confessions were secured during these interrogations.

Appellant, through his attorney, filed his motion to suppress, which motion was heard on March 19, 1979. The trial was held on April 4 and 5, 1979. At the suppression hearing, the State initially offered testimony from two witnesses — Chief Deputy Sheriff Ricky Banks and Deputy Jerry Carver. Both testified sufficiently for the court to have held that the admissions and confessions of appellant were freely and voluntarily given and that there was no coercion or inducement involved.

On cross-examination Deputy Sheriff Ricky Banks testified that in addition to Deputy Cooley and Deputy Carver, Deputy Whatley was present during the January 27th interrogation. Bank’s testimony revealed that appellant rode with Deputy Whatley in a patrol car to the scene where the cash register taken during the robbery was recovered. On cross-examination, Deputy Carver testified positively, definitely and unequivocably that Deputy Whatley was present during the interrogation of appellant.

The State rested after presenting the above two law enforcement officers. Appellant then testified and claimed that the chief reason for his admission or confession was that his father, Pleas Scott, Sr., was present during the interrogation and told him to go ahead and tell the truth; that Deputy Cooley had advised him to do this and in return he would try and get appellant a low bond so he could appear on a television program on Sunday. Appellant reaffirmed that Deputy Whatley was present during the interrogation.

Pleas Scott, Sr., appellant’s father, testified that Deputy Charlie Cooley told him that if he would get appellant to tell the truth that it would be easier on appellant and Cooley would talk to somebody to get a reduced bond. Scott, Sr., testified that he then told his son to tell the truth based on the assurance from Cooley regarding the bond.

The only rebuttal witness called by the state was Deputy Charlie Cooley. He denied indicating to appellant or his father that it would be easier on appellant to tell the truth and that if he would do so he would get a lower bond. He denied making any promises to appellant or his father except that he would get a bond set.

No mention was ever again made of Deputy Whatley. There was no explanation made whatever as to why he did not testify at the suppression hearing. The only time his name was mentioned was when the two deputies and appellant testified at the suppression hearing that he was present.

We repeat the requirement to be met when there is a motion to suppress admissions or confessions because of alleged coercion or undue influence, as set out clearly in Miles v. State, 360 So.2d 1244 (Miss.1978); Holt v. State, 348 So.2d 434 (Miss.1977); and Agee v. State, 185 So.2d 671 (Miss. 1966), and other cases. The procedure required is set out clearly in Holt as follows:

1. The preliminary hearing on the question of the admissibility of a confession must be in the absence of the jury and should be conducted before the trial on the merits begins.
2. The State has the burden of proving the voluntariness of a confession. This burden is met by testimony of an officer that the confession was voluntarily made without any threats, coercion, or offer of reward. Such testimony makes out a pri-ma facie case for the State on the question of voluntariness.
3. When, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was made, or give an adequate reason for the absence of any such witness.
The foregoing rules have been stated in numerous cases.
We strongly emphasize that in every case where the defendant takes the stand after the State has made a prima facie case of voluntariness and testifies to any fact which, if true, would tend to show that the confession was not voluntary, the State should offer all the officers who were present when the accused was questioned or give an adequate reason for the absence of any such witness.

It is clear from the above cited cases and others that the trial judge erroneously overruled appellant’s motion to suppress. We would hope that all trial judges and all prosecuting attorneys will soon become acquainted with this principle of law that has existed for a number of years and govern themselves accordingly.

REVERSED AND REMANDED.

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


author: BROOM, Justice, for the Court.

text:
    Robert EIDT v. CITY OF NATCHEZ, Mississippi.
    No. 51827.
    Supreme Court of Mississippi.
    April 30, 1980.

      Johnson & Johnson, Forrest A. Johnson, Jr., Forrest A. Johnson, Natchez, for appellant.
    Zuccaro, Riley, Pintard & Brown, Joseph S. Zuccaro, Natchez, for appellee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   BROOM, Justice, for the Court.

Termination procedures relating to the discharge of Lt. Robert Eidt (appellant) as an employee of the City of Natchez highlight this appeal. The Circuit Court of Adams County affirmed an order of the Natchez Civil Service Commission (Commission herein) which found that Eidt was discharged for cause. On his appeal here, Eidt argues reversal on grounds that his discharge was (1) without due process of law for failure of Natchez to accord him minimum pretermination procedural requirements, (2) not made or confirmed by the regular appointing power of Natchez, and (3) not supported by substantial evidence. We reverse.

On March 16, 1978, Eidt allegedly struck another fireman while on duty for which acting fire chief George Cummings of the Natchez Fire Department imposed a ten-day suspension without pay. Eidt served the suspension and appealed it to the Commission which affirmed on April 13, 1978.

By a termination notice dated April 18, 1978, Chief Cummings discharged Eidt effective April 21, 1978. Listed in the termination notice in general terms were the following reasons: incompetence, discourtesy, and injury to public service. A letter attached to the notice indicates that the main reason for the termination was that Eidt had attempted to misrepresent the March 16 incident at the suspension hearing before the Commission.

Eidt, through his attorney, requested a full evidentiary hearing (about his discharge) before the Commission. The matter was heard on August 10, 1978, and on October 11, 1978, the Commission issued its order affirming his dismissal. On appeal to the Circuit Court, the discharge was affirmed, but the lower court held that the discharge could not be effective until October 11, 1978, the date of the Commission’s order.

First proposition presented by Eidt is his contention that the proceedings lacked essential pretermination procedures thereby depriving him of due process of law. Little v. City of Jackson, 375 So.2d 1031 (Miss. 1979) has similarities but is not dispositive. Our decision in Little was subsequent to Eidt’s discharge, but Little states this Court’s position as to minimum pretermination procedures required by the Fourteenth Amendment (U.S. Constitution) due process clause:

Where a governmental employer chooses to postpone the opportunity of a non-probationary employee to secure a full-evi-dentiary hearing until after dismissal, risk reducing procedures must be accorded. These must include, prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons. Effective rebuttal must give the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision.

Our decision in the instant case is not premised on inadequate pretermination procedures but Little is cited here so that those who hold offices or positions in municipalities will again be made aware of pretermin-ation procedures discussed in Little.

Next Eidt argues that his discharge was not made according to the requirement of Mississippi Code Annotated § 21-31-23 (1972) and therefore is ineffective. Section 21-31-23 specifically allows for discharge “upon the written accusation of the appointing power” which in this case vested in Natchez’s Mayor and Board of Aldermen, not in the Fire Department Chief. Here the discharge was signed by Chief Cummings, without any authority or confirmation from Natchez’s appointing power under the statute.

Natchez’s brief states: “It can be reasonably assumed that they confirmed the intended suspension or discharge, and in any event, nowhere in the record, either at the time of the notice of intent to discharge, or prior to or during the hearing itself, did the appellant seek to have the matter remanded for a hearing or sign of confirmation by the Mayor or Board of Aldermen. . . .”

Section 21-31-23 precludes any power or right of the Chief of the Fire Department to terminate an employee protected by civil service. Natchez’s argument that, absent an express showing otherwise, it is “assumed” that the regular appointing power approved the discharge is contrary to the essence of civil service protection. Accordingly, we cannot uphold Fire Chief Cummings’ discharge of Eidt who must be reinstated with back pay subject to allowance for Eidt’s duty to mitigate his damages.

Third argument is that the Commission’s finding was not supported by substantial evidence and was not made in good faith for cause. Reversal being warranted by § 21-31-23, we deem unnecessary here any further discussion of the evidence except to point out that the record included some fifteen merit rating reports which set forth Eidt’s rating from 1972 until time of the hearing. These reports rated him at least average in the three areas listed in the termination notice. Chief Cummings admitted at the hearing that the merit reports would not establish any basis for the termination of Eidt’s employment.

Pursuant to § 21-31-23, supra, we have no choice but to order Eidt’s reinstatement to the position which he previously held. The case will be remanded to Natchez Civil Service Commission for determination of how much income Eidt has or reasonably should have earned since his discharge which amount shall be deducted from his back pay.

REVERSED AND REMANDED TO NATCHEZ CIVIL SERVICE COMMISSION.

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


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    STATE of Mississippi v. Henry Lee DAVIS and Mattie Davis.
    No. 51771.
    Supreme Court of Mississippi.
    April 30, 1980.
    Rehearing Denied May 28, 1980.

      Charles W. Wright, Jr., Meridian, for appellant.
    Roy Pitts, Meridian, for appellees.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SMITH, Presiding Justice, for the Court.

Indictments were returned on May 4, 1978, against Henry Lee Davis and Mattie Davis charging them with felonious possession of marijuana with intent to deliver. They were arraigned in the Circuit Court of Lauderdale County on May 5, 1978, and entered pleas of not guilty. On April 10, 1979, 340 days after arraignment, the circuit court dismissed the charges upon the ground that the State had failed to bring the defendants to trial within 270 days after arraignment as required by Mississippi Code Annotated section 99-17-1 (1972), which provides:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

The State of Mississippi has appealed as provided by Mississippi Code Annotated section 99-35-103(a) (1972).

There is no dispute as to facts shown by the record.

At the June, 1978 term, the first held after arraignment, on June 23, 1978, the case was continued generally to the August, 1978 term upon the application of the defendants. This involved a delay of 45 days.

On August 7, 1978, the first day of the August, 1978 term, both sides announced ready for trial and the case was set for trial on August 29, 1978. However, on August 29, 1978, the day set for trial, the defendants filed for the first time, (1) motions to suppress evidence, (2) demurrers to the indictments and (3) motions to quash the indictments. The motions to suppress were based upon alleged defects in the affidavits and search warrants and the motions to quash upon alleged racial discrimination in the selection of the foreman of the grand jury which returned the indictments. On that date, at the request of the State, the court entered an order continuing the cases “because of the overcrowded condition of the court docket”. The record reflects that there was no objection by either defendant and no request for trial.

The October, 1978 term convened on October 2, 1978, at which time the delay attributable to the continuance was an added 34 days.

The only action relating to the cases at the October, 1978 term was that on October 25, 1978, both sides announced ready for trial and the cases were set for trial on November 10, 1978. The cases were not tried and the record is silent as to the reason. Again there was no protest or objection by defendants nor was there a request for trial.

On February 7, 1979, at the request of the State, an order was entered by the court continuing the cases until April 10, 1979. The order of continuance recited that this action was taken for the reason “that the toxicologist, a necessary witness in the prosecution in this case, is unavailable to testify at this time . . .’’No protest or objection was made to the continuance by the defendants and there was no request by them for trial.

The defendants were represented by counsel and were at liberty on bail.

On April 10, 1979, the date set for trial, defendants moved to dismiss the charges because of the State’s failure to bring them to trial within 270 days after their arraignment. The trial judge sustained the motions and discharged the defendants. In arriving at his conclusion, the trial judge allowed as a deduction from the total elapsed time of 340 days only the 45 day delay which resulted from the continuance of the case granted at the specific request of the defendants. He declined to deduct any delay resulting from continuances ordered by the court at the request of the State.

The trial judge erred in dismissing the indictments and discharging the defendants.

In reaching this conclusion, it is unnecessary to reach the question of whether or not a continuance, pursuant to an order entered by the trial court where there is no contemporaneous protest or objection whatever by a defendant, and no request for trial, carries with it a presumption of good cause.

The order entered by the court on August 29, 1978, must be considered, in the absence of any objection or protest thereto, because of the “overcrowded condition of the court docket” to have been for “good cause.” The filing by the defendants of the demurrer and motions to quash on the eve of trial on this date, 81 days after arraignment, would have displaced the cases on the overcrowded trial docket of the court and made a new setting at the term difficult, if not impossible. This becomes evident when it is borne in mind that the motion to quash the indictment because of alleged racial discrimination in the selection of the foreman presented a factual issue, requiring an evi-dentiary hearing and was filed without notice on the day set for trial. The delay resulting from this continuance cannot be considered as having been without good cause, especially in the absence of any showing in the record to the contrary. In the complete absence of any protest or objection, or any request by defendants for trial, the continuances of June. 23, 1978, August 29, 1978 and February 7,1979 were entered for “good cause.” Even if it is assumed that other delays were not justified, nevertheless, there must be deducted from the 340 days: (1) 45 days attributable to the continuance granted on defendant’s own motion, (2) the 34 days delay following the filing of the several motions by defendants on the eve of trial on August 29 and due to the overcrowded condition of the docket, and (3) 62 days attributable to the continuance granted because of the absence of the State’s witness, the toxicologist.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set out what is sometimes referred to as a “balancing test,” to be used in determining whether a defendant in a criminal case had been denied his constitutional right to a speedy trial. In that case the Court said that in making such a determination that the factors to be considered were: length of the delay, reason for the delay, the defendant’s assertion of his right, and prejudice resulting to the defendant.

These criteria were used by this Court in Harrington v. State, 336 So.2d 721, 723-724 (1976):

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the United States Supreme Court announced a balancing test which takes into consideration the conduct of both the prosecution and the defendant in determining whether or not the accused’s right to a speedy trial has been violated. The test is expressed as follows:
A balancing test necessarily compels courts to approach speedy trial cases on an ad-hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. 407 U.S. 514 at 530, 92 S.Ct. 2182 at 2192, 33 L.Ed.2d 101 at 116-17 (Emphasis added).

In the present case clear justification for 141 days of the delay following arraignment appears from a consideration of the record. At no time on any of the occasions when the trial court entered orders for continuances were there any requests by the defendants for trial or assertion of their right to a speedy trial or objection or protest at the delay. Moreover, no prejudice is shown to have resulted to the defendants from the delays.

The case of Turner v. State, 383 So.2d 489 (1980), is distinguishable from the present case in that in Turner the State the present case in that in Turner the State failed to obtain any continuances but simply allowed 270 days to elapse after the date of the arraignment without bringing Turner to trial. The delay resulting from this non-action on the part of the State prejudiced Turner in that a material witness in his behalf had become unavailable. In Turner this Court also noted that the State had wholly failed to respond to the question presented and that this was tantamount to a confession of error.

In 57 A.L.R.2d 303, 306, Waiver or Loss of Accused Right to Speedy Trial (1958), appears the following:

A majority of the cases hold that by failing to demand a trial, or by failing to make some effort to procure a speedier trial than that actually accorded to him by the state, accused waives his right .to trial within the period prescribed by the statute, this being particularly true when accused is on bail. And it has been expressly pointed out that a failure to demand trial within the period prescribed by the statute will defeat a motion for discharge even though the statute does not expressly make such demand a requirement. And in the absence of an affirmative request or demand for trial it will be presumed that defendant acquiesced in the delay.

The judgment appealed from will be reversed and the cases remanded for trial.

REVERSED AND REMANDED.

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


text:
    Tommie Lee FIELDS, Jr. v. STATE of Mississippi.
    No. 51790.
    Supreme Court of Mississippi.
    April 30, 1980.

      Curtis H. Austin, Burdine &. Austin, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and BROOM and COFER, JJ.
   SMITH, Presiding Justice, for the Court:

Tommie Lee Fields, Jr. was indicted on two counts: (1) Possession of marijuana with intent to deliver and (2) possession of phencyclidene (PCP), a Schedule 1 controlled substance. He was tried and convicted in the Circuit Court of Monroe County on both counts and sentenced to imprisonment for six years, (two suspended), on count 1, and to three years on count 2, the two sentences to run concurrently.

On appeal, Fields assigns several grounds for reversal. Only one has merit. Fields contends that the admission, over objection, of evidence of the contents of a vacuum cleaner bag containing a small amount of marijuana, gleaned from his automobile after his arrest and while he was incarcerated in jail, and after the automobile had been seized by the officers and lodged in a public garage, was prejudicial error requiring reversal. A summary of the facts is necessary to appreciate the significance of this evidence.

On the day of Fields’ arrest, Patrolman Sykes, while travelling south on Highway 45, met a red Corvette going north, and clocked its speed at 88 miles per hour. The patrolman pulled off the road, turned his car around and pursued. However, although reaching speeds in excess of 100 miles per hour, he was unsuccessful in overtaking the Corvette and lost it when it turned off the highway. He had been unable to get close enough to read the license number. Patrolman Sykes testified that he knew Fields and, in the brief moment of the meeting and passing of the two automobiles, had recognized him as the driver of the Corvette and the Corvette as one belonging to Fields.

After the pursuit began, Patrolman Sykes observed a bag or some such object come out of the Corvette and an arm being withdrawn into the car. Mentally marking the spot, Patrolman Sykes returned there after he lost sight of the Corvette and found a red bag. In this bag were 23 envelopes, each containing a small amount of marijuana, a total of 54.6 grams by weight, and one small bag containing 178 milligrams of phencyclidene, known as PCP or angel dust.

Patrolman Sykes had communicated with the sheriff and that officer came to the spot where Sykes was waiting with the red bag. As the two officers were discussing the matter, they saw Fields drive by on the highway going south. The sheriff followed, “pulled him over” and placed him under arrest for speeding and for the possession of marijuana. Fields was lodged in jail at the county seat and his car was placed in a public garage. No warrant was obtained for the search of the car but a vacuum cleaner belonging to the wife of the garage owner was used by the officers to vacuum the interior of Fields’ automobile at the garage. The contents of the vacuum cleaner bag were then analyzed and found to contain .2 of a gram of marijuana. The introduction of evidence of these facts is the basis of Fields’ contention that the material found in his car was the fruit of an unreasonable and unconstitutional warrant-less search and constituted an error of prejudicial proportions which requires reversal of his conviction.

Fields’ defense was to the effect that Patrolman Sykes had been mistaken in identifying the Corvette as his and in identifying him as the driver. He produced a number of witnesses, whose testimony, if true, made it extremely unlikely, if not impossible, that it had been Fields who had been the driver of the Corvette pursued by Sykes. Fields expressly denied that it had been he, and denied having thrown out the bag containing the drugs.

The State contends that the use of this evidence was justified under the theory that it came within the rule that strictures against searches are relaxed where the search is of an automobile.

The above rule is based upon the mobility of the vehicle and the necessity for making the search promptly, when the occasion for the search is not known sufficiently in advance to afford officers a reasonable opportunity to obtain a search warrant. This is made necessary to prevent destruction of evidence or the obtaining of a weapon by the suspect.

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), cited Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), which involved the search of an automobile under circumstances substantially similar to the search conducted in the present case. In Chimel, supra, the car had been towed to a garage where it was searched by the police. The United States Supreme Court held that the search was unlawful, as too remote in time or place from the arrest.

In Chimel, supra, the Court said that a search incident to a valid arrest must be confined to the person and the area from within which he might have reached weapons or destructible evidence. Here, the defendant was already in custody so there was no danger that evidence would be removed or destroyed.

While sound, this rule has no application here. The automobile was taken from the suspect by the officers at the time of the arrest and its possession retained while the suspect remained in jail. There was ample time to obtain a warrant and no probability that the automobile could be removed beyond the reach of the officers. The rule referred to cannot be used to justify the failure to obtain a search warrant.

Alternatively, the State contends that admission of the evidence obtained from the Fields’ automobile was “harmless error.” We cannot agree under the circumstances of the case. The jury was confronted with a sharp, irreconcilable factual issue: Was Patrolman Sykes right in identifying the car from which the vacuum bag containing drugs had been thrown as being that of Fields, being driven by Fields? Or were Fields and his witnesses telling the truth in their testimony negating these assertions?

Evidence that the vacuum bag of materials obtained by vacuuming the interior of Fields’ car contained marijuana was a fact calculated to influence the jury to accept Patrolman Sykes’ testimony that Fields’ automobile had been used to transport marijuana and to reject the opposing testimony of Fields and his witnesses.

Under the circumstances, the introduction of this evidence, obtained through the warrantless search of Fields’ car cannot be classified as having been harmless error.

The search of Fields’ car by vacuum cleaning, after he had been arrested, transported to the county jail and lodged in jail and his car carried away from the scene of the arrest does not come within the purview of the rule relaxing the requirements as to what constitutes a reasonable search of a motor vehicle.

The search was in no way an incident to the arrest.

Nor can the vacuuming of the interior of Fields’ automobile be considered a measure reasonably connected with an effort on the part of the officers to protect themselves, the car or its contents.

The other assignments are without merit.

REVERSED AND REMANDED.

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


text:
    Christine GOWDY v. AMERICAN MORTGAGE & INVESTMENT COMPANY, INC., et al.
    No. 51846.
    Supreme Court of Mississippi.
    April 30, 1980.
    Walker, Brookins & Walker, John L. Walker, Jackson, for appellant.
    Gary D. Thrash, W. D. Kendall, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

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

AFFIRMED.


text:
    Thomas L. TAPP v. Dutch R. MAHAFFEY and J. W. Collums.
    No. 51837.
    Supreme Court of Mississippi.
    April 30, 1980.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Barry W. Gilmer, Jackson, for appellant.

W. E. Gore, Jr., Jackson, for appellees.

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

AFFIRMED.


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. Orell MARSH et al.
    No. 51791.
    Supreme Court of Mississippi.
    April 30, 1980.
    Wells, Downey & Wicker, John H. Dow-ney, Jackson, for appellant.
    Riddick & Carpenter, Robert M. Carpenter, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

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

AFFIRMED.

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


text:
    Everett WALKER v. STATE of Mississippi.
    No. 51838.
    Supreme Court of Mississippi.
    April 30, 1980.
    Travis T. Vance, Jr., Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sharkey County; Ben Guider, Judge.

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

AFFIRMED.


text:
    Roy PINKSTON v. SCOTT COUNTY BOARD OF EDUCATION.
    No. 51832.
    Supreme Court of Mississippi.
    April 30, 1980.
    Walker, Brookins & Walker, William Walker, Jr., Phillip J. Brookins, Jackson, for appellant.
    O. B. Triplett, Jr., Forest, for appellee.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


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    Willis D. BURTON and Willis E. Burton v. Mrs. Eloise P. RAY.
    No. 51829.
    Supreme Court of Mississippi.
    April 30, 1980.
    A. R. Wright, Jr., Carthage, for appellants.
    Montgomery, Smith-Vaniz & Stater, C. R. Montgomery, Canton, for appellee.
   Appeal from Chancery Court, Leake County; G. M. Case, Chancellor.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and WALKER, LEE, BOWLING and COFER, JJ., concur.


text:
    Kenneth WILLIAMSON v. STATE of Mississippi.
    No. 51847.
    Supreme Court of Mississippi.
    April 30, 1980.
    Wilkins, Ellington & James, Samuel H. Wilkins, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and COFER, JJ., concur.

AFFIRMED.


text:
    Lavelle WASSON, et ux. v. Joe SANDERS.
    No. 51834.
    Supreme Court of Mississippi.
    April 30, 1980.
    Ray S. Mikell, Edward C. Fenwick, Kosciusko, for appellants.
    Thornton, Guyton, Dorrill & Pettit, George L. Dorrill, Kosciusko, for appellee.
   Appeal from Chancery Court, Attala County; John C. Love, Jr., Chancellor.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

AFFIRMED.