author: SUGG, Presiding Justice,

text:
    Steve EASTWOOD v. STATE of Mississippi.
    No. 53039.
    Supreme Court of Mississippi.
    March 24, 1982.
    Rehearing Denied June 30, 1982.
    Joe R. Odom, Roy Pitts, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and WALKER and HAWKINS, JJ.
   SUGG, Presiding Justice,

for the Court:

Appellant was sentenced by the Circuit Court of Lauderdale County to serve a term of 12 years in the Mississippi Department of Corrections for the crime of burglary. Appellant has filed six assignments of error. We have carefully considered all six but conclude that only one presents a question of law not previously decided by this Court. Discussion of the other five would not benefit the bench and bar but would unduly lengthen this opinion. We will consider the question of the effect of the failure of the trial court to define the word night as used in the burglary statutes for the guidance of the jury.

Appellant was indicted for burglary under section 97-17-23 Mississippi Code Annotated (1972) which follows:

Every person who shall be convicted of breaking and entering, in the night, the dwelling house of another, armed with a deadly weapon, in which there shall be at the time some human being, with intent to commit some crime therein, shall be punished by imprisonment in the penitentiary not more than twenty-five years.

One of the elements of the crime of burglary under this statute is that the breaking and entering must have occurred during the night. Neither this burglary statute nor any of the other burglary statutes define night. In the absence of a statutory definition of night in the statute, the common law definition of night applies. At common law, night is that period between sunset of one day and sunrise of the next day during which there is not enough daylight or twilight to discern a man’s face. Judge Grant in his Summary of Mississippi Law, section 616 at 435 (1969) addressed this question.

Some burglary statutes, like our No. 2037 Code 1942 (entering inhabited dwelling armed with a deadly weapon), provide that the breaking and entering be done “in the night.” This is not confined to the exact period between sunset and sunrise. As laid down by Blackstone, the rule was: “If there be daylight or erepus-eulum enough, begun or left, to discern a man’s face withal (thereby), it is not burglary. But this does not extend to moonlight.” Crepusculum is Latin for crepus-cle which means creeping darkness; twilight; dusk. Twilight (the light between) is sunlight scattered by the atmosphere and its dust. The darker part of twilight is known as dusk. In 82 A.L.R.2d 643 et seq., there is an annotation entitled “Sufficiency of showing that burglary was committed at night.”

See also, Thomas v. State, 6 Miss. 20 (1840); 12A C.J.S. Burglary section 26; 13 Am.Jur.2d Burglary, section 22.

Appellant requested the following instruction which was refused.

The Court instructs the jury that night, within the definition of burglary, is a period between sunset and sunrise during where there is not daylight enough to discern a person’s face. You are further instructed that if you believe from the evidence that the alleged offense did not occur at night as defined in this instruction, then your verdict must be “Not Guilty.”

The only instruction given by the court which remotely related to a definition of nighttime was the following:

The court instructs the jury that on October 15,1980, sunrise was between the time of 6:55 A.M. and 7:01 A.M.

The jury was not given any instruction which defined night, but the jury should have been so instructed because one of the essential elements of the crime with which appellant was charged was breaking and entering in the night.

Appellant argues that his conviction should be reversed for the failure of any of the instructions to define night. We do not agree because the indictment and proof were sufficient to charge and support the conviction of appellant for burglary as defined by section 97-17-21 Mississippi Code Annotated (1972).

A similar situation arose in Newburn v. State, 205 So.2d 260 (Miss.1967), where Newburn was sentenced under section 2036 Mississippi Code 1942 Annotated (1956) to serve 12 years. The court stated that the indictment did not charge that a human being was in the dwelling house as required by section 2036, but noted that the indictment was sufficient to charge the crime of burglary under section 2038 Mississippi Code 1942 Annotated (1956). The punishment permitted under section 2036 was not less than 7 years nor more than 15 years and under section 2038 not more than 10 years. The Newbum court affirmed but reduced the sentence of 12 years to a term of 10 years, the maximum allowed under section 2038.

The maximum penalty under section 97-17-23 is imprisonment for a term not more than 25 years, while the penalty authorized by section 97-17-21 is not less than 7 years nor more than 15 years.

Appellant in this case was sentenced to serve a term of 12 years and although the sentence is within that permitted by section 97-17-21, we remand for a new sentence because the sentencing judge may impose a sentence of less than 12 years.

We affirm the conviction and remand for sentencing under section 97-17-21.

AFFIRMED AND REMANDED FOR PROPER SENTENCE.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

      . Some statutes define night as it applies to other crimes. See sections 49-7-59, 49-15-41, 63-7-11, 77-9-221, 97-17-23, and 97-23-9 Mississippi Code Annotated (1972).

      . Every person who shall be convicted of breaking and entering, in the day or night, the dwelling house of another, in which there shall be, at the time, some human being, with intent to commit some crime therein, either by forcibly bursting or breaking the wall, or an outer door, window or shutter, of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter, or by breaking in in any other manner, or with the assistance of one or more confederates, then present and assisting, or by unlocking an outer door by means of false keys, or by picking the lock thereof, shall be guilty of burglary, and imprisoned in the penitentiary not less than seven years nor more than fifteen years.

      . Section 97-17-21 Mississippi Code Annotated (1972).

      . Section 97-17-19 Mississippi Code Annotated (1972).


source: Caselaw Access Project

author: HAWKINS, Justice,

license: Public Domain

text:
    EDUCATIONAL FINANCE COMMISSION OF the STATE OF MISSISSIPPI v. JACKSON COUNTY SCHOOL DISTRICT.
    No. 53699.
    Supreme Court of Mississippi.
    May 5, 1982.

      Bill Allain, Atty. Gen. by Stephen J. Kirchmayr, Jr., and Susan L. Runnels, Sp. Asst. Attys. Gen., for appellant.
    C. R. McRae, Henry P. Pate, III, Pasca-goula, for appellee.
    Before WALKER, BOWLING and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

State Educational Finance Commission (EFC) has appealed from a decree of the Chancery Court of Jackson County reversing the EFC’s decision to reject a site location proposed by the Jackson County School District for a high school in one of the District’s attendance centers, and authorizing the District to proceed with construction of a school on the proposed site. We affirm.

The Jackson County School District (District) comprises most of the land area of Jackson County, and covers the entire county from north to south until the more populous coastal areas are reached.

The District has three attendance centers: St. Martin, Van Cleave and East Central. St. Martin’s is on the west side of Jackson County. The north boundary of St. Martin’s begins approximately seven (7) miles south of the north line of Jackson County, and the north nine (9) miles of this attendance center are four (4) miles in width. As the attendance center continues south there is a progressive widening to its south boundary, which joins Ocean Springs. The south mile and one-half (1%) of the attendance center is approximately eight (8) miles wide east and west.

The present St. Martin high school is located in the extreme southwest corner of the attendance center, an area which is heavily populated and commercial. The school building on this site was destroyed by fire, and the district has been required to utilize 28 portable classrooms.

The Jackson County Board of Education in 1978 determined a substantial building program was needed for the entire district, that new high school buildings were needed for the East Central, Van Cleave and St. Martin attendance centers, and a new vocational educational building was also needed. Following the statutory procedure a proposed bond issue of 9.9 million dollars was submitted to the voters in March, 1979, which failed to receive the affirmative vote of 60% of those voting. A second attempt to secure passage of the bond issue in May, 1979, likewise failed for the same reason. The third attempt on April 15, 1980, succeeded when the voters of the district approved the bond issue. The voters in St. Martin were informed the board proposed to locate a new St. Martin high school in the southeast quarter of section 16, township 7 south, range 8 west, and the voters in the St. Martin attendance center area voted overwhelmingly — over 80% — in favor of each of the proposed bond issues.

Following approval by the District of the bond issue, the board presented requests for approval of the four sites for construction of the new school buildings in the District, and the applications were formally presented at the August 17, 1981, meeting of the EFC, at which time all sites were approved except the site for the St. Martin High School. The minutes of this meeting recite the following:

In the executive session, the Commission:

(1) received reports from Commissioners Roach and Coleman and the Executive Secretary, all of whom had made official visits to the proposed site;
(2) examined the communication from the Jackson County Chancery Clerk regarding the Board of Supervisors’ pledge to build the necessary road and bridge to the proposed site;
(3) examined the report of the Gulf Regional Planning Commission regarding population projections for the St. Martin attendance area; and
(4) reviewed the presentations which had been made in open meeting by the Jackson County School officials.

The minutes further recite the consensus of the Commission was that additional documented factual information was needed, and the Commission thereupon postponed a determination on the proposed St. Martin High School site until the September 21, 1981, meeting of the Commission.

On August 26, 1981, county superintendent Jimmy Smithie wrote the Executive Secretary of the Commission enclosing detailed documentation why the Jackson County School Board preferred and had chosen the particular site for its new school.

Enclosed with the letter from Superintendent Smithie were:

(1) Correspondence from the Ocean Springs Lumber Company of the availability of land for housing, correspondence from a building development firm of additional land for residential construction, and a letter from the president of the First Mississippi National Bank commending the site and stating there were several large subdivisions within walking distance of the site, others planned, and the bank had acquired one subdivision adjacent to the proposed school location which contained 103 lots on which the bank planned construction of homes.
(2) A letter from the principal of the St. Martin High School setting forth the advantages of the proposed site.
(a) He stated control could be exercised over the type of buildings close to the school, avoiding undesirable businesses catering to children as well as undesirable influences around the campus for selling drugs. Next he listed that by being away from the mainstream of traffic there could be some safety control of the traffic on campus, and undesirable elements could be discouraged from coming on the campus.
(b) He answered the objection to the location of the site by stating the transportation of students would not constitute as big a problem as had been anticipated. According to Mr. Rivers, approximately 80 students would be in a work study program, another 80 students would be in the vocational shop program, 50 students in band, and 50 engaged in football. In his opinion, many of these would have a car or a ride. His opinion was there would be in excess of 200 cars driven to the campus, and when it was taken into consideration that many of these ears would have student passengers, he anticipated busing about 400 of a student body in excess of 700.
(c) Another advantage he listed was the unlimited amount of land for expansion and extracurricular activity.
(d) He said further there were several routes students would have in going to and coming from school.
(e) Finally, Mr. Rivers stated that while more convenient locations for the school could be found, the main thing for a school was to educate the children, and his opinion was this site would allow St. Martin to accomplish this goal. There would be fewer distractions and a reduction in the danger of an area of easy accessibility to the public.
(3) A letter from C. R. Slaughter dated August 25, 1981, with accompanying documentation, exhaustively detailed reasons for desirability of this site:
(a) He said that the transportation costs should be compared with the fact the site would not cost anything, and that there had been no computation of transportation costs.
(b) The proposed site was destined for continued development which would likely be residential. A right of way had been purchased by the State Highway Department to make an intersection of the Fort Bayou road and Interstate 10, a major interchange for Ocean Springs, which would result in another road connecting Interstate 10 with U.S. Highway 90, and which proposed roadway would be near the school site.
(c) He reviewed the trends in population growth and noted that supervisor’s district 4 encompasing this site is the fastest growing area of Jackson County. He also noted that the St. Martin — North Ocean Springs area would very likely grow in population and density towards the east, taking in the proposed school site. This site would probably never be the center of the population, however.

Mr. Slaughter’s letter revealed five additional proposed sites had been considered by the school board and he detailed why each of these five proposed sites compared unfavorably with the site the board desired to use for their new high school. These five alternate sites were marked on a map accompanying the letter. The site chosen by the school board contains approximately two hundred acres.

The Educational Finance Commission at its September 21,1981 meeting disapproved the proposed site. The official minutes of this meeting recognized the advantages of the site to be its topography, ample land, and no acquisition cost for the site. The minutes further recognized a survey had shown “49% more students would be closer to the new proposed school site than the old site.”

The disadvantages listed by the EFC minutes were as follows:

(1) The proposed site is located in the extreme south-eastern part of the attendance area.
(a) It is approximately six (6) miles (in a straight line) from the south-western corner of the attendance area, and the south-western part is the most heavily populated part of the attendance area.
(b) It is only two (2) miles from the south-eastern corner of the attendance area, and the south-eastern part is very sparsely populated.
(c) It is approximately one-half (%) mile from the southern boundary of the attendance area, but approximately fifteen (15) miles (in a straight line) from the northern boundary of the attendance area.
(d) It is within two (2) miles of the farthest point from the geographical center of the attendance area.
(2) The proposed site is located outside the populated part of the attendance area.
(a) If the school were presently located on this site, every student would be legally entitled to transportation at public expense.
(b) The site is located in the south-eastern. corner of the attendance area, while the most densely populated area is the south-western part.
(c) The site is located at almost the farthest point from the students who live in the northern part of the attendance area.
(d) The only authoritative study of the population trends in the attendance area which the Jackson County School Board presented was prepared by the Gulf Regional Planning Commission. It shows that the area immediately around the proposed site will increase in future years, though slowly. However, the population in the south-western part of the area will increase even more. By reference, said study is made a part of these Minutes.
(3) Access roads are inferior. While assurances have been given that the access roads will be constructed, there is no official, binding guarantee that the improvements will actually be made.

In summary, the three objections of the EFC to the proposed site were location, sparser population and accessibility by road.

Following the unfavorable decision of the EFC and its rejection of a motion of the County School Board to reconsider, an appeal was taken to the Chancery Court of Jackson County pursuant to Mississippi Code Annotated Section 37-45-51. In a carefully articulated opinion, the chancellor reversed the EFC and approved the site chosen by the County School Board, with decree on November 13, 1981. EFC perfected its appeal to this Court.

The County School Board could and should have made a better record in this case. Mississippi Code Annotated Section 37-45-37 (1972) imposed upon the Board the duty of providing a court reporter for its hearing before the Commission. See also State Board of Psychological Examiners v. Coxe, 355 So.2d 669, 671 (Miss.1978), wherein we have informed counsel of their duty in all administrative proceedings to see that a record is made. We also add our disapprobation of the presentation to the chancellor of documents which have not been presented to the EFC prior to its decision, as was done in this case. We have not considered these extraneous documents. Id. at 670.

Sufficient record has been made, however, from the minutes and the bill of exceptions for us to consider without being faced with a naked presumption of correctness of the decision of an administrative body. County Board of Education of Alcorn County v. Parents and Custodians of Students at Rienzi School Attendance Center, 251 Miss. 195, 168 So.2d 814 (1964).

We have before us the conclusions reached by two administrative bodies, both charged with the duty of making the best decision possible in the interest of the present and future school children of this school district. We attribute the highest motives and good intentions to each.

Three statutes and our common law relative to appellate review of decisions of administrative bodies govern this case. The statutes, or pertinent portions thereof, are as follows:

Section 37 — 45-28. Subject to the provisions of any applicable statute, the commission shall formulate policies and approve or disapprove plans for the location and construction of all necessary elementary and secondary school buildings.
Section 37 — 47-27. All capital improvements by any school district which are financed in whole or in part with funds received from the state public school building fund pursuant to an application approved by the commission, shall be constructed by contract entered into and awarded by the board of trustees or other governing body of such school district. The awarding of such contract shall be in the sole province of such board of trustees or other governing body except as is herein provided. No such contract shall be entered into unless and until the site for the location of and the plans and specifications for the construction of the capital improvements shall have been approved by the commission .... (emphasis added).
Section 37-7-315. ... If any change or alteration of the location of a school building or attendance center shall involve the construction of new school facilities, or the making of additions to, or the major repair, alteration, or renovation of existing facilities, then such change or alteration shall not be effective until same shall have been submitted to and approved by the state educational finance commission and by the county board or boards of education .... (emphasis added).

Our appellate review is limited to a determination of whether the EFC decision (1) was supported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the commission to make; or (4) violated some statutory or constitutional right of the complaining party. State Board of Psychological Examiners v. Coxe, supra; Mississippi State Tax Comm’n. v. Mississippi-Alabama State Fair, 222 So.2d 664 (Miss.1969); Loftin v. George County Board of Educ., 183 So.2d 621, 623 (Miss.1966). In this case we will only consider whether the rejection of the proposed site by the EFC was supported by substantial evidence.

The executive secretary of the EFC informed representatives of the County School Board of his misgivings about the proposed site during an inspection in July, 1981, but withheld any opinion that the site would be rejected. At its August, 1981 meeting, the EFC did not disapprove the site, but rather told the Board to secure additional documented factual information prior to the scheduled September, 1981 meeting of the EFC. This record reveals the County School Board fully complied with this requirement of the EFC by submitting reports containing specific, documented information by professional personnel and comments by reputable firms and citizens of Jackson County.

The County School Board gave excellent reasons for its site proposal, fully answering the objections of the EFC, and stating precisely why this site, though somewhat “off the beaten path”, was preferable. The Board pointed out and listed five additional sites which it and the architect considered, together with the many factors which were taken into consideration in a coastal county with a varying, fast-growing population. The record shows the County School Board gave strong, cogent, specific and compelling reasons for the location of the school on the proposed site.

The objections of the EFC, which remained essentially the same as originally expressed by the executive secretary, were general with somewhat dogmatic conclusions. The record does not reflect whether the EFC considered the documented evidence presented to it in the letter from Superintendent Smithie.

The Highway Department map of Jackson County shows the proposed site to be approximately two (2) miles south of Interstate 10 and one (1) mile north of Highway 90, two of the busiest highways in Mississippi. The entire southern portion of this attendance center will increase in population over the years, but without the school it is anticipated that the population in the southwest portion, where the school is presently located will have a considerably faster growth rate. On the other hand, the development of the area in which the proposed school site is located will probably be primarily residential, which is precisely the type of growth the District would prefer for the area in which its high school is to be located.

We can give no special credence to the objection that the proposed site at present does not have adequate access roads. The map shows that roads do exist on the east, south and west sides of the property. The school itself will be justification for improvement of ingress and egress roads.

Finally, it should be noted there was no secret about the proposed location of the new high school in St. Martin Attendance Center. The newspapers repeatedly informed the public where the County School Board proposed to locate the school. The voters in this area, with this information before them, by at least an 80% affirmative vote on three occasions approved the proposed bond issue.

The decision of the County School Board to locate the high school on this proposed site was supported by substantial evidence, and the reason for rejecting this decision by the EFC was not supported by substantial evidence. We therefore affirm the decree of the Chancery Court of Jackson County.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, DAN M. LEE and DAR-DEN, JJ., concur.

      . There are also three municipal separate school districts in Jackson County: Ocean Springs, Moss Point and Pascagoula. These municipal separate school districts have nothing to do with this case.

      . The first two failures to pass the bond issue by 60% resulted from opposition of the voters in the East Central Attendance Center, concerning matters which have nothing to do with this case.

      . In July, 1981, the Executive Secretary inspected the proposed site and informed the county superintendent and several members of the board he had reservations about the proposed site as being too remote from any concentrated population, and that it was not accessible by adequate roads.

      . The Board of Education never considered locating the new high school on the same location as the old high school for the reason that it was in a commercial area totally surrounded by laundromats, houses, service stations, grocery stores, and the school would have little control of the surrounding area for the protection of the students. There had been drug problems, and in one instance students were smoking at a service station, which resulted in an explosion.

      . We do not know what this means, however. We regret neither counsel for appellant nor appellees could tell the Court just what this statement means. It was the conjecture of counsel for appellees it means three-fourths (/<) of the students would be closer to the new site than the old.

      . We do not ignore the contention of the EFC that it could not consider these five additional sites, as no application for their approval was ever presented to the EFC. This is not the point, however. These sites were set forth and described to the EFC for comparison to demonstrate the varied and complicated factors which had to be considered by the County School Board in fulfilling its heavy responsibility to locate a school in this area, which is not typical of the rest of the State.

      . We are not unmindful of the hazard the County School Board undertook in telling the people of this attendance center where it proposed to locate the high school. It had no legal authority to locate the school at any site without approval of the EFC, and to inform the voters prior to the bond election the location of the high school was a considerable risk we do not recommend for any school board. Perhaps the Board informed the public the location was tentative and subject to the EFC’s approval. This again, however, is not the point before us. Rather, we think it appropriate to consider — indeed we would be derelict to ignore — that this particular location was the place overwhelmingly approved by the people who must live and send their children to high school at this attendance center, as well as have their property additionally taxed to pay a considerable bonded indebtedness.


text:
    R & R WHOLESALERS, INC. and National General Insurance Company v. John READ.
    No. 53187.
    Supreme Court of Mississippi.
    May 12, 1982.
    Rehearing Denied June 30, 1982.
    Steen, Reynolds, Dalehite & Currie, Edward J. Currie, Jr., Jackson, for appellants.
    Levi & Denham, Ltd., Dempsey M. Levi, Ocean Springs, for appellee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

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

AFFIRMED ON THE MERITS AND THE MOTION OF THE APPELLEE FOR 15% DAMAGES ON THE JUDGMENT ENTERED IN THE COUNTY COURT IS HEREBY SUSTAINED.

SUGG and WALKER, P. JJ., ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Robert D. STIGLER v. STATE of Mississippi.
    No. 53240.
    Supreme Court of Mississippi.
    May 19, 1982.
    Rehearing Denied June 30, 1982.
    Liston, Crull & Gibson, William Liston, Winona, for appellant.
   Appeal from Circuit Court, Leflore County; Webb Franklin, Judge.

Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.

Before SUGG, P. J., and ROY NOBLE LEE and DAk M. LEE, JJ.

AFFIRMED.


text:
    Mrs. Alice Virginia Busby WHITE v. William Allison BUSBY, Jr.
    No. 53530.
    Supreme Court of Mississippi.
    May 26, 1982.
    Rehearing Denied June 30, 1982.
    Michael R. Medley, Jackson, for appellant.
    Lee B. Agnew, Sr., Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


author: ROY NOBLE LEE, Justice,

text:
    Danny Ramsey VALENTINE v. STATE of Mississippi.
    No. 53228.
    Supreme Court of Mississippi.
    May 26, 1982.
    Rehearing Denied June 30, 1982.

      Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Charles M. Merkel, Clarks-dale, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Danny Ramsey Valentine was indicted, tried and convicted in the Circuit Court of the First Judicial District, Hinds County, Honorable William F. Coleman, presiding, for armed robbery and was sentenced to serve a term of twenty-five (25) years with the Mississippi Department of Corrections. He has appealed and assigns three (3) errors in the trial below.

The first two assignments of error present the contentions that (1) the trial court erred in overruling the appellant’s motion for a directed verdict at the close of the State’s case, and (2) the trial court erred in submitting the case to the jury on armed robbery, when the evidence indicated only simple robbery.

The first contention is without merit for the reason that the appellant introduced evidence in his own behalf after the State rested and the motion for a directed verdict was not renewed at the conclusion of all the evidence. See Lucas v. State, 381 So.2d 140 (Miss.1980); Fields v. State, 293 So.2d 430 (Miss.1974).

The second contention was not properly preserved for review because no objection was made to the instruction. See Miss. Sup.Ct. Rule 6 and applicable decisions of this Court. However, the appellant requested a peremptory instruction of not guilty which was refused, and we consider whether it should have been granted as if assigned under Error No. 1.

On December 8, 1980, the Ellis Isle Branch of Deposit Guaranty National Bank of Jackson, Mississippi, was robbed by a black male at approximately 12:55 p. m. He went to the teller’s window occupied by Mrs. Oral Lovett, requested her to change a twenty-dollar ($20.00) bill and then presented a brown paper bag and directed her to fill it with large bills. Mrs. Lovett was standing behind a shoulder-high counter approximately eighteen (18) to twenty-four (24) inches from the robber as she filled the bag with in excess of thirteen hundred dollars ($1,300). He was photographed by the bank security camera and subsequently was identified and arrested.

Upon his arrest, the appellant denied that he had any involvement in the robbery, but later, admitted committing the crime. He stated that he used the black handle of a broken hair comb to make the teller think he had a gun.

Mrs. Lovett testified the appellant pointed a small black handgun at her and she also called it a pistol. Appellant’s attorney purchased a starter pistol, incapable of firing a projectile, on the day of the trial, which was similar in appearance to the handgun described by Mrs. Lovett. He showed the starter pistol to her and asked Mrs. Lovett, if it looked like the handgun appellant exhibited on the day of the robbery. Mrs. Lovett described the handgun she saw appellant use as having a longer barrel and wider front than the starter pistol. Mrs. Lovett also said she was extremely frightened and thought appellant was going to shoot her.

Appellant testified the pistol he used in the robbery was a starter pistol and he had carried it to his home. However, at trial he stated he did not know the whereabouts of the pistol. A search of the premises by the police failed to reveal the pistol.

The appellant testified in detail that he committed the robbery but that he did not use a real pistol or a deadly weapon. The main contention on this appeal is that the State failed to prove the more serious crime of armed robbery since it was not shown that appellant had, and used, a real gun.

The jury was instructed by the court that before it could find appellant guilty of armed robbery, the jury must believe beyond reasonable doubt that the appellant exhibited a deadly weapon to Mrs. Lovett in committing the robbery. There is nothing in the testimony of Mrs. Lovett to indicate that the weapon was a starter pistol. Her testimony was to the effect that appellant pointed a small black handgun/pistol at her with his finger on the trigger and that she was afraid he was going to shoot her. That testimony and the inconsistencies in the statements and testimony of appellant, together with the inferences flowing from all the evidence, were sufficient to present an issue for the jury as to whether or not appellant used a deadly weapon. Warn v. State, 349 So.2d 1055 (Miss.1977).

The appellant further contends the lower court erred in sentencing him by giving special consideration to the fact that he robbed a bank. The appellant was twenty (20) years old and a college student at the time of the trial, with no previous felony conviction. At the time of pronouncing sentence upon the appellant, the trial judge stated:

It’s unfortunate that someone of your age on the first offense that they’re charged with ends up committing such a serious crime. The prospects of death or serious injury as a result of bank robbery is so great that it has to be treated very — in a different view from the ordinary crime or the usual armed robberies that we’re faced with. I sentence you to a term of twenty-five years in the custody of the Mississippi Department of Corrections.

The appellant argues that the lower court considered robbing a bank to be a more serious crime than any other type of armed robbery, and such constitutes error. However, that argument is not persuasive. We have held many times that the imposition of sentence is within the sound discretion of the trial judge when the sentence is within the limits prescribed by statute. Yazzie v. State, 366 So.2d 240 (Miss.1979); Ainsworth v. State, 304 So.2d 656 (Miss.1975).

There being no reversible errors in the record, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, BOWLING, HAWKINS, and DAN M. LEE, JJ., concur.


author: WALKER, Presiding Justice, HAWKINS, Justice,

text:
    Albert TURNER and Freddie Sparks v. STATE of Mississippi.
    No. 53152.
    Supreme Court of Mississippi.
    May 26, 1982.

      Roy 0. Parker & Associates, Nora J. Hall, Tupelo, Burdine & Austin, Curtis H. Austin, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before WALKER, P. J., and DAN M. LEE and DARDEN, JJ.
   WALKER, Presiding Justice,

for the Court:

The appellants, Albert Turner and Freddie Sparks, were convicted in the Circuit Court of Lee County of selling cocaine, a controlled substance.

Albert Turner was sentenced to serve a term of seven years in a facility designated by the Department of Corrections with two years of said sentence suspended on good behavior and to pay a fine of $2,000.00 and cost of court.

Freddie Sparks was sentenced to serve a term of twelve years in a facility designated by the Department of Corrections with two years of that sentence suspended on good behavior and to pay a fine of $3,000.00.

Feeling aggrieved, appellants have prosecuted their separate appeals. The appellants were represented by separate counsel in the trial court and are represented by separate counsel on this appeal.

APPEAL OF ALBERT TURNER

Turner first contends that the trial court erred in denying his motion for a severance.

Turner’s motion for a severance was based on the fact that his co-indictee, Freddie Sparks, was going to plead entrapment which necessarily entails the admission of the acts charged in the' indictment. In his motion, Turner argued that he did not intend to offer such a defense, that forcing him to be tried along with his co-defendant would prevent him from receiving a fair and impartial trial and would be a denial of due process rights under the Constitutions of the State of Mississippi and the United States.

The record reveals that Turner’s motion for a severance was not made until the day of trial after the court called their case and asked the parties if they were ready. The record also shows that the question of entrapment was considered by Turner himself because he requested from the state any evidence that would tend to establish the defense of entrapment.

The court ruled, among other things, that the motion was not timely made.

During his motion, Turner’s counsel stated to the court that he had “recently”, learned that Freddie Sparks was going to plead entrapment. However, counsel did not explain what he meant by “recently” and that is such a relevant term that we do not know whether he meant several days or several weeks as the indictments were returned on February 5, 1980, and the trial was not begun until December 4, 1980. When time is a necessary element to be used in this Court’s determination of whether the trial court was correct in a particular ruling, it is incumbent upon the movant to make a full and complete record for this Court to review in making its decision. Absent such a record, we have no basis upon which to make a determination of whether the trial court ruled correctly. The presumption in such circumstances is that the trial judge was fully advised (although this is not reflected by the record), and that his ruling was proper. The rule is well settled that motions, of whatever character, must be timely brought to the attention of the court or they will be overruled.

Moreover, the only authorities cited by Turner are Mississippi Code Annotated section 99-15-47 (1972) which states, in part, that an application for a severance should be made prior to arraignment, and the case of Bolin v. State, 209 Miss. 866, 48 So.2d 581 (1950), which holds that granting a severance is within the discretion of the trial court.

We are unable to say from this record that the trial court abused its discretion in denying Turner’s motion for a severance.

The appellant next contends that the trial court erred in allowing testimony concerning conversations which took place in the co-defendant’s automobile at the time of the sale.

Prior to trial Turner had made a request for discovery under the Mississippi Uniform Criminal Rules of Circuit Court Practice, Rule 4.06 (1979), which rules are to be found at 370 So.2d Mississippi Reports XXXVII. Appellant’s motions were extremely comprehensive; they asked for, among other things, the following:

(1) All statements written, recorded and oral by the defendant;

(2) All conversations, written, recorded and oral in which the defendant participated; and

(3) The full text of the conversation referred to in overt act number one of the indictment.

The motions also requested “copies of any exculpatory material concerning defendant.”

The state voluntarily complied with the motions. However, during trial, the state tendered the testimony of Agent Spillers concerning a tape recording of the alleged cocaine sale. Appellant objected on the basis that he had not received the particular tape as a part of the material divulged by the state in discovery and would be prejudiced by any testimony concerning the tape. The jury was excused, and following a discussion, the motion was overruled. The state continued to examine Spillers and ultimately sought to admit the tape and play it before the jury. At this point, the trial judge, sua sponte, excused the jury and ruled that the state had breached its discovery duty in not furnishing the tape upon request. He then sustained appellant’s motion as to the admission of the tape itself and refused to admit it into evidence.

The appellant contends in his brief that he was denied the opportunity to examine the most damaging evidence the state had against him; this resulted in an impossibility of preparation of a proper defense.

The trial court allowed Agent Spillers to testify as to the cocaine sale transaction that occurred in the co-defendant’s automobile at which sale Turner, the co-defendant Sparks, and Spillers were present. However, the court did not admit the tape recordings of the transaction into evidence.

Rule 4.06 is not an exclusionary rule; that is, it does not necessarily preclude the introduction of evidence not furnished under the motion for discovery. That rule provides, in part:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.
Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court. (370 So.2d at LV).

When the district attorney attempted to introduce the tapes into evidence, the trial court, without any motion being made, sent the jury to the juryroom. The tapes were then and there available to Turner’s counsel upon his request. No motion for a recess was requested by counsel for defendant to allow him time in which to examine the tapes that is shown by the record. Counsel only made a motion for a mistrial based in part on the nonproduction of the tapes. This motion was overruled. The appellant does not contend that the tapes contained any exculpatory material and does not invoke the doctrine with reference to the suppression of evidence favorable to an accused when requested that was laid down in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The underlying question to be decided on review of discovery nondisclosure in criminal cases is whether any prejudice befell appellant as a result of actions and rulings of the trial court. Lee v. State, 383 So.2d 821 (Miss.1980).

The appellant did not demonstrate on his motion for a new trial nor has he demonstrated on this appeal wherein he was prejudiced in any manner whatsoever by not having the particular tape to review prior to trial. Furthermore, appellant cites no authority in his brief with respect to this issue except the citation of the discovery rule mentioned above. The court did not err in allowing agent Spillers to testify with regard to the cocaine sale transaction.

Turner next contends that the court erred in denying him instruction D-1A.

There is no merit to this assignment of error. When all of the instructions to the jury are read as a whole, they fairly instructed the jury as to the law and their duties.

Therefore, the verdict, judgment and sentence of Albert Turner are affirmed.

APPEAL OF FREDDIE SPARKS

Freddie Sparks did not deny his participation in the acts charged by the state but interposed the defense of entrapment. On appeal, he contends that the lower court erred in finding him guilty in that the verdict was against the overwhelming weight of the evidence.

The theory of entrapment operates to excuse a criminal act where it was not originally contemplated by the perpetrator but was induced by authorities. The doctrine is not applied as a matter of constitutional right but as a court created limitation on governmental activity. Ainsworth v. Reed, 542 F.2d 243 (5th Cir. 1976); reh. den., 544 F.2d 518, cert. den., 430 U.S. 917, 97 S.Ct. 1332, 51 L.Ed.2d 596. It is an affirmative defense and must be interposed and proved by the defendant. The state bears no burden of proof until a prima facie case has been made out by the defense. Alston v. State, 258 So.2d 436 (Miss.1972). See also Carroll v. State, 396 So.2d 1033 (Miss.1981). Whether or not the defendant was entrapped by an officer of the state is to be determined by the jury under proper instructions. Boone v. State, 291 So.2d 182 (Miss.1974); Jones v. State, 285 So.2d 152 (Miss.1973); Smith v. State, 248 So.2d 436 (Miss.1971).

The question of entrapment as to Sparks was decided by the jury under proper instructions and on conflicting evidence. In our opinion, the evidence more than amply supported the verdict of the jury finding Sparks guilty contrary to his defense of entrapment.

Therefore, the verdict, judgment and sentence of Freddie Sparks are affirmed.

AFFIRMED AS TO FREDDIE SPARKS AND AFFIRMED AS TO ALBERT TURNER.

PATTERSON, C. J., SUGG, P. J., and BROOM, ROY NOBLE LEE, BOWLING, DAN M. LEE and DARDEN, JJ., concur as to Freddie Sparks.

PATTERSON, C. J., SUGG, P. J., and BROOM, ROY NOBLE LEE, BOWLING and DARDEN, JJ., concur as to Albert Turner.

DAN M. LEE, J., takes no part as to Albert Turner.

HAWKINS, J., specially concurs.

APPENDIX “A”

IN THE CIRCUIT COURT OF LEE COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

VERSUS NO. 18,231

ALBERT TURNER

MOTION FOR DISCOVERY

Comes now the defendant, Albert Turner, by and through his attorney of record, Curtis Austin, and makes the following request pursuant to the Mississippi Uniform Criminal Rules of Circuit Court Practice, Rule 4.06, as follows to-wit:

1. Names and addresses of all witnesses in chief proposed to be offered by the prosecution at the trial;

2. Copies of any written statement from the defendant;

3. Copies of criminal records of the defendant, if proposed to be used to impeach;

4. Copies of crime lab reports or reports of any tests made;

5. Exhibits and physical evidence and photos to be offered in evidence; and

6. Copies of any exculpatory material concerning defendant.

IN THE CIRCUIT COURT OF LEE COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

VERSUS NO. 18,257

ALBERT TURNER

MOTION FOR DISCOVERY

Comes now the defendant, Albert Turner, by and through his attorney of record, Curtis Austin, and makes the following request pursuant to the Mississippi Uniform Criminal Rules of Circuit Court Practice, Rule 4.06, as follows to-wit:

(1) All statements written, recorded and oral, by the defendant; and

(2) All conversations, written recorded and oral, in which the defendant participated; and

(3) The full text of the conversation referred to in overt act number one of the indictment; and

(4) The conversation referred to in overt act number two of the indictment; and

(5) All conversations and statements by the co-defendants named in the indictment; and

(6) Any conversation or statement by any person which the People intend to offer into evidence against Albert Turner and or either or both of the defendants; and

(7) With respect to each of the conversations and statements referred to above, state whether the conversation was written, oral and/or recorded.

(8) In the event the conversation or statement was oral but not recorded, turn over a statement setting forth the full and exact statement together with all notes.

(9) In the event the conversation or statement was written turn over a copy of the written statement.

(10) In the event the conversation or statement was recorded, turn over a copy of the recording to the defense.

(11) Directing the prosecution to disclose:

(a)Whether Albert Turner or either of the codefendants has been the subject of electronic surveillance, eavesdropping, search or seizure or interrogation;

(12) The true names and addresses of all witnesses:

(a) Who the prosecution intends to call to testify at the trial; and/or

(b) Who were present when the alleged narcotics were seized; and

(c) Who have any information which would tend to establish the defense of entrapment, agent of the buyer, who have knowledge of any bargain, promises, inducements or deals between any party to any of the conversations referred to in the indictment and any governmental agency.

(13)Directing the prosecution to disclose the true names and addresses of any and all persons who participated in the investigation leading to the arrest and indictment of Albert Turner including:

(a) All civilian informants, confidential or otherwise, and;

(b) The promises, rewards and inducements offered them for their cooperation, and;

(c) Their B.C.I. and F.B.I. arrest records;

(d) All police, D.E.A. and other law enforcement personnel; and

(e) An exact statement of their roles in the investigation; and

(f) The personnel folder of every such individual.

HAWKINS, Justice,

specially concurring:

I agree with the result reached in this case.

Any failure of the State to comply with Rule 4.06 regarding discovery should be deemed serious, in my view.

While the rule itself is not an exclusionary rule, exclusion of evidence violative of this rule may very well be a proper sanction and indeed the only feasible sanction.

In this case it appears there was no clear understanding between the State and Turner’s counsel as to what he had been given. Counsel made a broad and comprehensive discovery motion, parts of which are not encompassed by Rule 4.06. If he had wanted to be sure precisely what he was or was not being given under this particular motion, he should either have had a clear, unequivocal understanding with the district attorney or secured a court order stating what he was and was not entitled to. He did neither.

The court excluded playing of the tape of Turner’s conversation with Agent Spillers, but permitted Spillers to testify what Turner had told him.

Because Turner’s counsel never showed he had been denied access to this tape, and especially because he never showed or even claimed either at trial or on appeal he had been caught by surprise, or was prejudiced in any manner whatsoever, no harmful error ensued in Agent Spillers’ testimony.

      . See Appendix “A” for Turner’s extensive motions for discovery.


text:
    Gaylon WALKER v. STATE of Mississippi.
    No. 53544.
    Supreme Court of Mississippi.
    June 2, 1982.
    Blackmon & Smith, Edward Blackmon, Jr., Canton, for appellant.
    Bill Allain, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Yazoo County; Kelly Collins, Special Judge.

Before PATTERSON, C. J., SMITH, P. J., and BROOM, J.

AFFIRMED.


author: SUGG, Presiding Justice, BOWLING, Justice, DAN M. LEE, Justice,

text:
    Ray GLENN and Deborah P. Glenn v. David HERRING and Laurel Federal Savings and Loan Association, and Kalford C. Ratcliff, Trustee.
    No. 53035.
    Supreme Court of Mississippi.
    June 9, 1982.

      J. Ronald Parrish, Laurel, for appellants. Pack, Ratcliff & Ratcliff, Kalford C. Rat-cliff, Laurel, Collins & Collins, Wyatt Collins, Ellisville, for appellees.
   SUGG, Presiding Justice,

for the Court:

The chancellor took this ease under advisement but did not render an opinion within six months so appellant, who was complainant in the trial court, appealed under the provisions of section 11-1-17 Mississippi Code Annotated (1972).

All chancellors or judges of the chancery and circuit courts of the state of Mississippi shall render their final decree on any and all matters taken under advisement by such chancellors or judges not later than six (6) months after the date when same are taken under advisement or not later than six (6) months after the date on which the chancellors or courts or judges set as a date for the final brief or memoranda of authority is required to be filed on or as to the cause taken under advisement, whichever is the latest date after the date on which the cause or case is taken under advisement.
In the event a final decree has not been entered within the six months period hereinbefore referred to, then any party to said law suit shall have the right to appeal on the record as otherwise provided the same as if a final decree has been rendered adversely. Said appeal shall be to the supreme court of the state of Mississippi and shall be treated as a preferred case over other cases except election contests.

Section 11-1-17 does not deal with substantive law but is a procedural statute enacted by the legislature to require trial judges to render opinions and issue judgments in matters taken under advisement so that litigation can be finally terminated. In Newell v. State, 308 So.2d 71 (Miss.1975) we held the following:

We are keenly aware of, and measure with great respect, legislative suggestions concerning procedural rules and they will be followed unless determined to be an impediment to justice or an impingement upon the constitution. The inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of powers and the vesting of judicial powers in the courts. Matthews v. State, 288 So.2d 714 (Miss.1974); Gulf Coast Drilling & Exploration Co. v. Permenter, 214 So.2d 601 (Miss.1968); and Southern Pacific Lbr. Co. v. Reynolds, 206 So.2d 334 (Miss.1968), wherein the following is stated:
... The phrase “judicial power” in section 144 of the Constitution includes the power to make rules of practice and procedure, not inconsistent with the Constitution, for the efficient disposition of judicial business. 206 So.2d at 335.

(308 So.2d at 76)

The statute has a laudable purpose, but experience with appeals under the statute leads us to the conclusion that it has not achieved the purpose intended for the following reasons. First, there is no time limit within which an appeal must be taken under the statute so a final decision in any given case may be delayed for an indefinite period. Second, a party using the statute in an effort to obtain a decision must incur the expense of prepaying the trial record and the appellate costs in this Court. Third, parties are reluctant to appeal in cases involving primarily a factual issue because the party taking the appeal is placed in the artificial position of appealing, “as if a final decree had been rendered adversely.” Fourth, some parties are reluctant to appeal under the statute because they do not want to incur the displeasure of a trial judge. Fifth, issues of fact would be decided by this Court as a trial court rather than an appellate court.

We have also expressed reservation about the statute on jurisdictional grounds because it requires this Court to act as a trial court contrary to Section 146 of the Mississippi Constitution of 1890. In Beane v. Bowden, 399 So.2d 1358 (Miss.1981) we stated:

Although over a year elapsed between the death of the trial judge and the bringing of this appeal, we consider the case on its merits, albeit with reservations, because appellee did not challenge the jurisdiction of this Court to conclude the case. (399 So.2d at 1359)

In several cases we have spoken to the jurisdiction of this Court as a court of appeals under Section 146 of the Constitution of 1890. In Railroad Co. v. Dodd, 105 Miss. 23, 61 So. 743 (1913) we held:

The jurisdiction which properly belongs to a court of appeals includes only such as is of a revisory character, and necessarily implies that the matter revised must be a judicial decision, rendered by a tribunal clothed with judicial power.
The rule herein announced has the sanction of the great name of Story, for in section 1761 of the second volume of the fourth edition of his Commentaries on the Constitution he used this language: “The essential criterion of appellate jurisdiction is that it revises and corrects the proceedings of a case already instituted, and does not create that cause. In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted in and acted upon by some other court, whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and, indeed, in any form which the Legislature may choose to prescribe; but still the substance must exist before the form can be applied to it. (105 Miss. at 43, 44; 61 So. at 743, 744)

Railroad Co. clearly teaches that appellate jurisdiction necessarily implies that the subject matter must have been acted upon by the tribunal whose judgment or proceedings are to be reviewed. In the case at bar the trial court has not rendered a judicial decision on the subject matter of the case, so there is no judgment to be reviewed on appeal.

In Yazoo & Mississippi Valley R. R. Co. v. Wallace, 90 Miss. 609, 43 So. 469 (1907) this Court held that Section 4910 of the Code of 1906 was unconstitutional. In holding the statute unconstitutional the Court stated:

This statute is plainly unconstitutional and void. It is for the benefit of plaintiffs. It shuts out defendants from having complete and final disposition of their rights in a forum provided by the organic law for all, and into which they have been forced by plaintiffs. It compels them to appeal, which otherwise they might not wish to do, and then concludes with a clause, as a salve, by attempting, in the very face of the constitution, to give the supreme court original, instead of mere appellate, jurisdiction. It works only against the defendant litigant. If the verdict against him be for too much, he must bear the injustice; but note, if it be for too little, the favored plaintiff is not concluded, but may move for new trial. If the jury gave too much, by a miscalculation of the amount due on a promissory note, the defendant must suffer or appeal. He must do this, even if the verdict be without any sort of support in the evidence. No other than the monstrous conclusions above indicated can be drawn from this act. (90 Miss. at 614, 615, 43 So. at 470)

Section 11-1-17 shuts out all parties in a case from having a complete and final disposition of their rights in a trial forum provided by the organic law. If a matter is taken under advisement and is not acted on in the trial court, it compels an appeal, which a party might not wish to take if a decision had been rendered, and in the face of the constitution, attempts to give the Supreme Court original, instead of appellate, jurisdiction.

In White v. State, 159 Miss. 207, 131 So. 96 (1930), appellant was convicted of a crime and appealed to this Court. He then filed in the circuit court a petition for writ of error coram nobis based upon the ground of newly discovered evidence. At the conclusion of a hearing on a petition the trial court directed the court reporter and the clerk to make a supplementary record of the testimony and forward it to the Supreme Court to become a part of the record in the case then on appeal. This Court sustained the motion of the state to strike the evidence presented on the petition for writ of error coram nobis, holding:

The circuit court having declined to pass on the application for the writ, this court is without jurisdiction to review its action in that respect. Under section 146 of the Constitution, the Supreme Court is an appellate court, and not a court of original jurisdiction. The circuit court cannot “abdicate any part of its judicial functions or duties in favor of the Supreme Court, or of any other court.” St. Louis & S. F. R. Co. v. Bridges, 156 Miss. 206, 125 So. 423, 426. (159 Miss. at 211, 131 So. at 97)

When a trial court fails to render a decision on any matter presented to it, it abdicates a part of its judicial function. Section 11-1-17 then seeks to elevate the abdication of the judicial function by a trial court to the status of a judicial decision unfavorable to the appealing party to be reviewed by this Court.

From the above cases it is clear that the function of trial courts is to render decisions in matters presented to them, and the function of this Court is to review and revise, if necessary, judicial decisions of inferior tribunals.

Section 146 of the Constitution confers upon this Court appellate jurisdiction. Appellate jurisdiction, of necessity, includes issuance of such incidental procedural orders or writs necessary to enable this Court to fully exercise its appellate jurisdiction. At a very early age in the history of the Republic, the United States Supreme Court in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821), speaking through Chief Justice Marshall, recognized that, “[A] writ of prohibition or any other similar writ is in the nature of appellate process.” [19 U.S. (6 Wheat.) at 397, 5 L.Ed. at 289] Recognizing that writs of prohibition, writs of mandamus, or other similar writs are aids to the appellate process, we have held that this Court has jurisdiction to issue writs of mandamus and writs of prohibition to inferior courts as an aid to the appellate process. State v. Maples, 402 So.2d 350 (Miss.1981); Woods v. Lee, 390 So.2d 1010 (Miss.1980); Boydstun v. Perry, 249 So.2d 661 (Miss.1971). The writ of mandamus is an aid to the appellate process, because by it, the appellate court directs an inferior tribunal to take some action so its judicial decision may be reviewed on appeal.

We embrace the purpose of the statute but are of the opinion it impinges on Section 146 of the Constitution. However, the result sought by the legislature can be obtained without requiring this Court to function as a trial court by the issuance of a writ of mandamus from this Court directing a trial court to render a decision in matters taken under advisement. Accordingly, we hereby adopt Supreme Court Rule 47 authorizing any party in a case to apply to this Court for a writ of mandamus to issue to an inferior court to require such court to render a decision on matters taken under advisement so the decision of the inferior court may be reviewed on appeal to this Court.

RULE 47
If a trial judge in a civil case fails to render an opinion, ruling or finding within six months after taking a case under advisement or deferring such ruling or finding, any party in the case may apply to the Supreme Court for a writ of mandamus to compel the trial judge to render a decision on the matter taken under advisement or deferred. Application for a writ of mandamus must be made within forty-five (45) days after the expiration of six months from the date the case was taken under advisement by the trial judge.
However, in cases taken under advisement by a trial judge before May 15, 1982, in which no opinion is rendered within six months after the date the case was taken under advisement, any party in such cases shall have until December 31,1982 to apply for a writ of mandamus.
If the party who filed the original complaint fails to apply for a writ of mandamus within the time prescribed, the complaint shall stand dismissed without prejudice. If a party who has filed a counterclaim or a cross-claim fails to apply for a writ of mandamus within the time prescribed, the counterclaim or cross-claim shall stand dismissed without prejudice.
Application for a writ of mandamus by the party who filed the original complaint shall not relieve the party who filed a counterclaim or cross-claim from applying for a writ of mandamus within the time prescribed. Neither shall the application for a writ of mandamus by the party filing a counterclaim or cross-claim relieve the party filing the original action from applying for a writ of mandamus within the time prescribed. The party filing a complaint and the party filing a counterclaim or cross-claim may join in the application for a writ of mandamus.

Rule 47 does not deal with substantive law but is purely procedural. We are of the opinion that it will aid in the efficient dispatch of the business of the courts of this state by providing a means whereby a final decision may be obtained by any party within a prescribed time. The rule cures the deficiencies of the statute in the following manner.

First, the rule fixes a definite time within which application for the writ can be made enabling any party in a case to obtain a final decision within the time prescribed.

Second, neither party would be forced to appeal in order to obtain a decision thereby incurring the expense of prepaying the costs for a trial record.

Third, parties applying for the writ would not be placed in the same position as an appellant under the statute who must appeal, “[A]s if a final decree had been rendered adversely.”

Fourth, parties would be required to apply for a writ of mandamus to save a dismissal of their case, so when a party applies for the writ, they would not thereby incur the displeasure of a trial judge because the trial judge would know that the party was forced to apply for the writ to avoid a dismissal of the case.

Fifth, in cases where a counterclaim or a cross-claim had been filed, the counter-claimant would have the same responsibility as the original party to file an application for a writ of mandamus. This would avoid a waiting game between the original complaining party and the counterclaiming party because both would be required to file in order to avoid a dismissal of their respective claims.

Sixth, issues of fact would be decided by the trial court instead of this Court acting as a trial court contrary to the provisions of Section 146 of the Constitution.

We therefore dismiss the appeal. Any of the parties may apply for a writ of mandamus under Rule 47, and upon a final decision by the trial court, all costs including costs of this appeal shall be assessed in accordance with law and the equities of the case.

After decision in this case by the trial court either party may appeal, and the present record may be used in such appeal. If an appeal is taken by either party after a decision by the trial court, it will be necessary to supplement the present record with the finding of facts and decree of the trial court.

In his dissent, Justice Dan Lee suggests that Supreme Court Rule 47 is not necessary because this Court has authority to remand a case under section 11-3-7 Mississippi Code Annotated (1972) where no decision has been rendered by a trial court. This suggestion overlooks the fact that cases may be remanded under 11-3-7 for an additional finding of fact or for further proceedings only where a final judgment has been appealed from. We have remanded cases under the statute only when a final judgment was appealed from. Illustrative of this principle is Edwards v. Lumber Co., 92 Miss. 598, 46 So. 69 (1908), in which this Court stated:

We therefore think that the decree of the court was erroneous, and we should in consequence enter a final decree here; but, owing to the fact that another point is made in the case, which is that the writ of garnishment was never served on the appellees as a matter of fact, and the chancellor made no finding as to this, and as we are simply a revisory court, and cannot either reverse or affirm on a matter not acted on, this case must be reversed, and also remanded. (92 Miss. at 602; 46 So. at 70)

Furthermore, in Biglane Operating Co. v. Brown, 322 So.2d 470 (Miss.1975), we remanded that case for a decision on certain issues set forth in the opinion. This case was an appeal from a final judgment and the trial judge held that one question in the case was moot. We held that the question was not moot, and although we did not use the magic word “reversed,” when we disagreed with the trial judge and held that the question was not moot, this constituted a reversal.

In the case before the Court, the trial judge did not act on the matters presented by the pleadings and the evidence and did not render a final judgment. As stated in Edwards, supra, “[W]e are simply a revisory court and cannot either reverse or affirm on a matter not acted on.”

It is also suggested that Rule 47 will increase the expense of litigation and in the words of the dissent, “We are using extremely heavy and expensive artillery to kill a gnat.” The converse is true. Without Rule 47, the only way parties may obtain a decision in a matter not acted upon by a trial judge is by appeal to this Court, which is time consuming and expensive. An appeal requires appellant to prepay the cost of a trial transcript and the filing fee in this Court, and requires both appellant and appellee to incur the expense for preparation of briefs. Rule 47 does away with the delay and expenses incident to an appeal and substitutes a simple, inexpensive, and expedient procedure invoking the authority of this Court to require a trial court to promptly render a decision on matters taken under advisement.

APPEAL DISMISSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

BOWLING and ROY NOBLE LEE, JJ., dissent.

DAN M. LEE, J., dissents.

BOWLING, Justice,

dissenting:

I am inclined to agree with the majority opinion in the result reached in its analysis of Mississippi Code Annotated, Section 11-1-17 (1972). I am firmly convinced, however, that the majority is going about solving the question in the wrong way; that is, adding a new “Supreme Court Rule” to hold that a legislative statute is void.

I have thought since the final passage of the amended statute, effective August 7, 1968, that certain amendments should be made thereto. The majority opinion lists areas in which the statute could and should be improved. The opinion then goes on to make an attempt to declare the statute unconstitutional, although it never comes right out with a positive statement to that effect. The opinion states that the majority is taking the action because the statute is “procedural” rather than “substantive”. With deference, I do not see how this statement can possibly be correct. The statute involves jurisdiction of courts over certain cases. Under the terms of the statute, the trial court has jurisdiction at certain times and this Court has jurisdiction at certain times. This was made clear in Riley v. Richardson, 258 So.2d 419 (Miss.1972), where the Court said:

“After the appeal taken as aforesaid, the lower court had no jurisdiction to enter any opinion or decree.” The status of the case in Riley was exactly the same as in the case sub judice.

In Beall v. Beall, 310 So.2d 706 (Miss.1975), there was an appeal under the statute in question and the Court, through now Chief Justice Patterson, stated:

More than six months having passed with no adjudication or decree from the trial court, Mr. Beall filed an appeal to this Court by the provisions of Miss.Code Ann., Section 11-1-17 (1972). Since he initiated the appeal, this Court has jurisdiction by the terms of the statute and his status is that of an appellant.

The fact that a jurisdictional question is involved was again mentioned by the Court through Chief Justice Patterson in Beane v, Bowden, 399 So.2d 1358 (Miss.1981). A slightly different situation was involved but the same statute was used because of the death of the trial judge after the case had been submitted to him and taken under advisement. The Court, in accepting jurisdiction, stated:

Although over a year elapsed between the death of the trial judge and the bringing of this appeal, we consider the case on its merits, albeit with reservations, because appellee did not challenge the jurisdiction of this Court to conclude the case.

Neither the jurisdiction of this Court, nor the possible unconstitutionality of the statute in question, was raised by the parties in the present appeal. The majority just decided to raise these questions on their own motion and adopt another rule, rather than follow, what I humbly say is, the proper procedure. We should bear in mind that this new rule is a Supreme Court Rule and not an addition to the new Rules of Civil Procedure. There is no express directive that Section 11-1-17 is hereinafter void, which surely will result in much confusion.

Each year the Court advises the Legislature on statutes the Court thinks should be amended or deleted. This advice has been placed in the records of the Court each year. I have checked each year’s recommendations since the passage of MCA, § 11-1-17, as it now reads, and I find that this Court has never suggested to the legislature any amendments to said section.

I have heretofore discussed my opinion that Section 11-1-17 is substantive law. Surely, any statute that deals with jurisdiction of courts is substantive rather than procedural.

There was no request by the parties in the present appeal to declare the statute in question unconstitutional, and as stated by Chief Justice Patterson for the Court in Beane, supra, we should not consider any constitutional or jurisdictional question “because appellee did not challenge the jurisdiction of this Court to conclude the case.” Not only was jurisdiction not challenged in the case sub judice, there was no indication whatever of any intent to raise a constitutional issue. As hereinbefore stated, although these topics were discussed in the majority opinion, Section 11-1-17 is “still in the books.”

I firmly believe that the vast majority of the bar and the juridicary are of the opinion that amendments should be made to the statute in question. I believe the majority opinion is correct in its analysis of the defects in the statute. With deference, however, I do not believe that the changes in the statute should be handled by another court rule. In my humble opinion, the changes attempted to be made by the majority opinion should be done as in previous years. We should request that at the next session of the legislature that it should amend Section 11-1-17 to include the results reached in the majority opinion as well as any other amendments suggested by the bar to the legislature or the members of that body whose duty and responsibility it is to make, amend, change or delete substantive law.

ROY NOBLE LEE, J., joins in this dissent.

DAN M. LEE, Justice,

dissenting:

Finding that I am unable to agree, I most respectfully dissent for the following reasons. The majority opinion herein cites as a basis for its authority to pass rules and strike statutes duly passed by the legislative branch of government, the case of Ne- well v. State, 208 So.2d 71 (Miss.1975). I do not believe that it was the intent of the Newell Court to allow the striking of such statutes in the manner proposed here. The Newell Court dealt with a procedural problem which was not specifically addressed by statute. Here, the majority proposes to ignore a state statute, namely, Mississippi Code Annotated section 11-1-17 (1972), by enacting a supreme court rule. The end product is that we will have a supreme court rule and a statute dealing with the same subject, which are diametrically opposed. For this Court to hold that proposed Supreme Court Rule 47 will prevail over section 11-1-17 will only serve to confuse the lawyers, court clerks, support personnel of the judicial system, and, of course, the general public.

Indeed, proposed Rule 47 in its present form defeats the very purpose for which the judicial system exists. It requires a litigant to pay a lawyer to file his lawsuit and then pay a larger fee for the attorney to file a writ of mandamus in the Supreme Court to obtain a decision in the original lawsuit in the trial court due to the trial judge’s failure to act on the suit within six months. Litigation breeds litigation to the detriment and expense of the litigant. The proposed rule even goes further and provides that if the party filing the suit does not file a petition within forty-five days after the expiration of the six-months period, the complaint shall be dismissed without prejudice.

Surely, there is a shorter, cheaper and better solution. For instance, remand the cause to the chancellor pursuant to Mississippi Code Annotated section 11-3-7 (1972) and provide in the order for a decision from the chancellor within sixty or ninety days, section 11-3-7 provides as follows:

The supreme court shall hear and determine all cases properly brought before it at the return term, unless cause be shown for a continuance; and in case the judgment, sentence, or decree of the court below be reversed, the supreme court shall render such judgment, sentence, or decree as the court below should have rendered, unless it be necessary, in consequence of its decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter to be determined is uncertain; in either of which cases the suit, action or prosecution shall be remanded for a final decision ; and when so remanded, shall be proceeded with in the court below according to the direction of the supreme court, or according to law in the absence of such directions, (emphasis ours).

This statute grants this Court ample authority to remand the case to the court below according to the directions of the Supreme Court. All this Court has to do is to place in the order a time limitation, which I suggest would be sixty or ninety days, for the lower court to reach a decision. Either of the parties, if aggrieved, could then appeal the final decision to this Court. In accord, Edwards v. Kingston Lbr. Co., 92 Miss. 598, 46 So. 69 (1908); Biglane Operating Co. v. Brown, 322 So.2d 470 (Miss.1975).

The majority opinion in this case does not deal with the question in a simple, inexpensive way. Rather it proposes to make a mountain out of a molehill and adds a new supreme court rule to the present rules of this Court. If such a rule is to be proposed on this subject, it would have to be under the new Mississippi Rules of Civil Procedure pertaining to the trial courts. Certainly, most trial practitioners and judges will not look to the rules of the Mississippi Supreme Court to find a remedy for the trial judge’s failure to render timely decisions. Most, if not all, lawyers and trial judges are under the impression that the rules of the Supreme Court are for the internal operation of the Supreme Court only as distinguished from statutory law or the Mississippi Rules of Civil Procedure.

If a rule is to be passed by this Court that will have the effect of overriding and taking the place of section 11-1-17, a legislative act duly passed by the legislature, then such rule would have to be submitted to the legislative branch of government pursuant to Senate Bill 2714 passed by the Mississippi Legislature during the 1982 session and effective as of March 3, 1982.

One of the problems that brought about Senate Bill 2714 was this Court’s action in adopting Rules of Civil Procedure on May 26, 1981, which had the effect of striking several hundred statutes of the State of Mississippi that were duly passed by the legislature without specifically naming the statutes affected thereby. This placed the trial judges, court clerks and the support personnel in the courthouses in the dubious position of being faced with rules that are directly in conflict with statutes passed by the legislature. This dilemma was thought to be resolved by the legislative branch of government, after consultation with the judicial branch and members of this Court, by passing Senate Bill 2714 which gave the Court the right to promulgate rules of procedure while at the same time providing that the rules be submitted to the legislative branch of government for its disapproval of any particular rule.

I concur and agree with Senate Bill 2714 and under the terms thereof will agree that this Court does have rulemaking authority. I refuse to take advantage of that part of the bill which gives this Court the rule-making power, and ignore other provisions of the bill which require that the rules be submitted to the legislative branch of government for its disapproval of any particular rule that this Court may adopt.

Rules of civil procedure are for the most part beneficial to the lawyers and the courts, but the public will pay the bill therefor. Perhaps, proposed Rule 47 is well intentioned; however, the reason that lawyers and judges exist is to serve the general public in resolving legal problems arising out of living in an ever-increasing complex society that causes conflicts between members of the public with each other, the public with federal, state, county or municipal government, or governmental agencies. Do we want to choke the system down so that it increases the expense of litigation to the general public? To do so defeats the very purpose of the legal system itself and, therefore, the system fails.

Albeit well intentioned, the terms and expense of the proposed new Rule 47 will defeat the very purpose for which it was created. Worse, because of the expense, a litigant may be denied access to the very system that is set up for the resolution of his legal problems.

Rule 47 is as follows:

If a trial judge in a civil case fails to render an opinion, ruling or finding within six months after taking a case under advisement or deferring such ruling or finding, any party in the case may apply to the Supreme Court for a writ of mandamus to compel the trial judge to render a decision on the matter taken under advisement or deferred. Application for a writ of mandamus must be made within forty-five (45) days after the expiration of six months from the date the case was taken under advisement by the trial judge.
However, in cases taken under advisement by a trial judge before May 15, 1982, in which no opinion is rendered within six months after the date the case was taken under advisement, any party in such cases shall have until December 31,1982 to apply for a writ of mandamus.
If the party who filed the original complaint fails to apply for a writ of mandamus within the time prescribed, the complaint shall stand dismissed without prejudice. If a party who has filed a counterclaim or a cross-claim fails to apply for a writ of mandamus within the time prescribed, the counterclaim or cross-claim shall stand dismissed without prejudice.
Application for a writ of mandamus by the party who filed the original complaint shall not relieve the party who filed a counterclaim or cross-claim from applying for a writ of mandamus within the time prescribed. Neither shall the application for a writ of mandamus by the party filing a counterclaim or cross-claim relieve the party filing the original action from applying for a writ of mandamus within the time prescribed. The party filing a complaint and the party filing a counterclaim or cross-claim may join in the application for a writ of mandamus.

Proposed Rule 47 contains an unreasonably short time for filing an application for a writ of mandamus. The rule provides that it be filed within forty-five days after expiration of the six months from the date the case was taken under advisement by the trial judge. The rule further provides that if the party who filed the original complaint fails to apply for a writ of mandamus within the time prescribed, the complaint shall stand dismissed without prejudice.

Forty-five days is far too short a time to allow a litigant or his attorney to apply for a writ of mandamus.

That portion of Rule 47 which states that “if the party who filed the original complaint fails to apply for a writ of mandamus within the time prescribed, the complaint shall stand dismissed without prejudice” will not have the salutary effect that is mentioned in the opinion of the Court; that is, that the trial judge will know that the party asking for the writ of mandamus was compelled to do so by Rule 47 and therefore, will not be aggravated with the party seeking the writ of mandamus.

Additionally, that part of proposed Rule 47 which provides, “the complaint shall stand dismissed if a writ of mandamus is not applied for within forty-five days” has serious constitutional problems in that it does not provide for notice to dismiss prior to actual dismissal to litigants or attorneys as required by due process of law. It will be said that the rule provides for a dismissal “without prejudice;” however, serious due process questions arise if it is dismissed without prejudice and the statute of limitations runs in the interim, thereby precluding refiling of the lawsuit. This is only one example of the problem.

The rule would seem to have a chilling effect upon a litigant’s access rights to the judicial system because the judicial system itself fails to render a decision within six months, but if the system, or the judge, does not render such a decision, then the litigant would have his complaint dismissed without notice. The law giveth, and the rule taketh away without notice. Certainly, that portion of the proposed rule deals with substantive law and is not purely procedural.

If this Court proceeds the long way around, in an attempt to pass such a rule as that proposed in the opinion, it should proceed to do so as part of the Mississippi Rules of Civil Procedure in accordance with Senate Bill 2714. However, in that event, we are using extremely heavy and expensive artillery to kill a gnat. In my opinion, the most direct and positive way to deal with this question would be for the Court to proceed and decide the appeal on its merits by remanding the case to the chancellor with directions to make a finding of fact and render a final decision within the time limit fixed by the order of this Court pursuant to section 11-3-7.


author: DAN M. LEE, Justice,

text:
    STATE of Mississippi v. Lucious PARKS.
    No. 53244.
    Supreme Court of Mississippi.
    June 9, 1982.

      Gerald W. Chatham, Hernando, for appellant.
    Rhett R. Russell, Memphis, Tenn., for ap-pellee.
    Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of DeSoto County wherein Lucious Parks, defendant/appellee, was indicted for possession of a controlled substance, namely, approximately fourteen pounds of marijuana. The drug was seized from the trunk of Parks’ automobile after Parks was stopped for violation of a traffic ordinance. The trial court sustained Parks’ motion to suppress the evidence on the ground that the law enforcement officers were without justification for seizing Parks’ automobile and that there was no probable cause to inventory the trunk of the automobile. From this finding the state appeals.

ON MOTION TO DISMISS APPEAL

Mississippi Code Annotated section 99-35-103 (1972) provides:

The state or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a criminal cause in the following cases:
(a)From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense.
(b) From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the supreme court shall nevertheless decide the question of law presented.
(c) From a ruling adverse to the state or municipality in every case in which the defendant is convicted and prosecutes an appeal; and in such case the whole record shall be carried before the supreme court on the direct appeal, and the case shall be treated as if a cross appeal had been formally prosecuted by the state. All questions of law thus presented shall be decided by the supreme court.

In State v. Burrill, 312 So.2d 1 (Miss.1975), we stated:

Burrill questions the right of the state to appeal, citing Mississippi Code 1972 Annotated section 99-35-103, which provides when the state or a municipality may appeal in a criminal cause. That statute does not control the appeal prosecuted by the state in the present case. The limitation placed on the state by the foregoing statute contemplates causes where there is an actual prosecution of a criminal cause to final judgment. Other than in criminal causes, the state has the same right as any other litigant to prosecute an appeal under the general appeals statute.
(312 So.2d at 3)

The state may not appeal a criminal case except where specific statutory authority grants it the right to do so. State v. Key, 93 Miss. 115, 46 So. 75 (1908).

In the following cases we have allowed the state to appeal from adverse rulings on the admission or exclusion of evidence. State v. Sisk, 209 Miss. 174, 46 So.2d 191 (1950); State v. Johnson, 166 Miss. 591, 148 So. 389 (1933); State v. McMullins, 156 Miss. 663, 126 So. 662 (1930); and State v. Ireland, 89 Miss. 763, 42 So. 797 (1906). However, an examination of these cases reveals that there was a final judgment acquitting the defendant; therefore, the appeal was proper under subsection (b) of section 99-35-108.

24 C.J.S. Criminal Law section 1659 (1961) provides in part:

Suppression of evidence. As a general rule, orders for the suppression of evidence are not appealable ....

The appeal now sought by the state does not fall within any of the categories authorized by section 99-35-103. There was no judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime. Nor was there a judgment rendered acquitting or convicting defendant. The appeal by the state is therefore interlocutory which is not authorized by statute and therefore must be dismissed.

For the above reasons, appellee’s motion to dismiss the appeal is sustained and the appeal dismissed.

APPEAL DISMISSED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Ricky MARTIN v. STATE of Mississippi.
    No. 53252.
    Supreme Court of Mississippi.
    June 9, 1982.
    Darrell Reeves, Columbus, for appellant.

      Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Lowndes County wherein Ricky Martin, defendant/appellant, was indicted, tried and convicted for rape of a female over the age of twelve years. Upon conviction, Martin was sentenced to serve fifteen years in the Mississippi Department of Corrections. We reverse.

Prior to December 1, 1980, the prosecu-trix, who was sixteen years old at the time, suffered from seizures and abnormal behavior. On January 13, 1981, the prosecutrix underwent psychological testing by Dr. Mike Roberts, a clinical psychologist with the Regional Mental Health Complex. Dr. Roberts administered the Wechsler Intelligence Scale for children and the Wider Range Achievement Test for purposes of evaluation. The results of these tests indicated prosecutrix had an I.Q. of 61, which fell within the mild mental retardation range, and a mental age of approximately seven to eight years old. Dr. Roberts opined that the prosecutrix was incapable of giving informed consent to the act of sexual intercourse. Moreover, Dr. Roberts asserted a stressful situation which could include a sexual encounter, would further reduce the likelihood that a person within prosecutrix’s range of intelligence could make a good decision in consenting to sexual relations with appellant.

Appellant was indicted, tried and convicted for the December 1, 1980, nonforcible rape of the prosecutrix.

Did the trial court err when it orally instructed the jury that it could include mercy as part of its verdict when it was reported that two members of the jury would not change their votes unless they could do so.

After the jury retired, the following conversation transpired between the trial judge and the jury:

THE COURT:
Bring the jury out.
(JURY IN)
THE COURT:
Members of the jury, have you arrived at a verdict?
A JUROR:
We have not, your Honor. We have several stipulations that we would like to talk with someone about — legal questions before we decide on this case.
THE COURT:
The normal procedure is that once you have heard all the evidence and received the instructions and heard argument of counsel that we cannot instruct you any further. You may ask the question, and then I’ll determine at that time whether or not I can answer it or not.
A JUROR:
Your Honor, the jury cannot arrive at a decision unless — two members of the jury have — have agreed that they will not change their — their vote unless they can plead for a sentence.
THE COURT:
Mercy?
A JUROR:
Mercy.
THE COURT:
I think you could include that as part of your verdict, that after you write your verdict if the jury so wishes I think they could recommend mercy to the Court; it would not be binding on the Court, but I think you could do that if you—
A JUROR:
Very well, your Honor, may we be excused?
THE COURT:
You may retire to the jury room.
(JURY OUT)
THE COURT:
All right, Mr. Reeves, you may make your record.
MR. REEVES:
I’d like to move for a mistrial based on the conversation between the Court and the jury. I believe the jurors might misinterpret — I don’t think they realize that being advised they can put that on the verdict would mean absolutely nothing to the Court or would be — have no binding affect on the Court.
THE COURT:
I told them it would not be binding on the Court. Your motion for a mistrial is overruled.

Appellant contends that this comment by the trial judge was an oral instruction and denied him the opportunity to examine and enter an objection thereto, and the comment had the further effect of inviting the jury to consider a matter outside the record, thus contravening other instructions.

Ordinarily, as little verbal exchange as possible initiated by the jurors to the trial judge is desirable. Morgan v. State, 370 So.2d 231 (Miss.1979). The reason for such a rule is explained in Pearson v. State, 254 Miss. 275, 179 So.2d 792 (1965), wherein it is stated:

In the case of Green v. State, 97 Miss. 834, 838, 53 So. 415, 416 (1910), in recognizing the great influence of these officers and the worthiness of the occupants of this honorable position, it was said:
“It is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict. He cannot be too careful and guarded in language and conduct in the presence of the jury to avoid prejudice to either party. 21 Ency.P. and P. 994, 995, and notes. The court will not stop to inquire whether the jury was actually influenced by the conduct of the judge. All the authorities hold that, if they were exposed to improper influences, which might have produced the verdict, the presumption of law is against its purity; and testimony will not be heard to rebut this presumption. It is a conclusive presumption.” (254 Miss. at 292, 179 So.2d at 999-800)

It is now well settled in this state that a trial judge may request the numerical division of a jury without committing reversible error. See Sharplin v. State, 330 So.2d 591 (Miss.1976). Moreover, the length of deliberation of a jury rests within the sound discretion of the trial judge. Dixon v. State, 306 So.2d 302 (Miss.1975). However, where, upon polling the jury, a juror expresses doubt as to whether or not he has voted his convictions, the questionable verdict requires a new trial. Morgan v. State, 370 So.2d 231 (Miss.1979).

In Cothern v. State, 217 Miss. 146, 63 So.2d 820 (1953), the jury, after deliberating for some time, asked the bailiff to summon the trial judge. When a juror asked for a definition of grand larceny and the maximum penalty, the trial judge responded appropriately. When the juror asked another question about burglary, the trial judge refused to answer, stating the instructions were before the jury. The case was reversed based upon the premise that the trial judge erred in orally instructing the jury. See also Ware v. State, 218 Miss. 173, 65 So.2d 236 (1953). In Horn v. State, 216 Miss. 439, 62 So.2d 560 (1953), a juror, during deliberations, asked the bailiff what the penalty for manslaughter was. About thirty minutes after the bailiff expressed his opinion on the matter, the jury returned a verdict of guilty but asked that defendant be given the mercy of the court. In reversing the case, this Court said:

“We are of the opinion that the record sustains the presumption that the statement made to the jury by the bailiff may have had a decided effect upon the verdict. The jury had retired from the bar and had been in consideration of the case for an hour and a half, and upon receiving the statement of Bond they immediately made up their verdict. .. . (216 Miss. at 442, 62 So.2d at 561)

In Warren v. State, 336 So.2d 726 (Miss.1976), the trial judge gave an additional instruction, stating the maximum penalty for manslaughter while the jury was deadlocked. Shortly thereafter, the trial judge gave another instruction which specified the maximum penalty for manslaughter. Twenty minutes later, the jury returned a verdict of guilty of manslaughter with a recommendation of mercy. The action of the trial judge was held to constitute reversible error. In Carrol v. State, 391 So.2d 1000 (Miss.1980), reversible error was found where the trial judge, pursuant to a juror’s request, explained malice aforethought.

The jury ordinarily should have no concern in arriving at its verdict with the quantum of punishment that may be inflicted in response thereto. Abney v. State, 123 Miss. 546, 86 So. 341 (1920).

Appellant was charged with rape pursuant to Mississippi Code Annotated section 97-3-65(2) (Supp.1981). Upon conviction, a life sentence may be imposed by the jury; however, if the jury fails to affix punishment at life, the court must impose punishment within its discretion. Although the record does not reveal how long the jury deliberated before reaching its verdict following the trial judge’s comment, we believe the judge’s comment may have had a decided effect upon the verdict.

The statement to the jury that it could include a recommendation of mercy as part of its verdict could have been interpreted as an invitation by the trial judge that the jury’s recommendation would have a bearing on appellant’s punishment and may have caused the two jurors to change their verdicts to guilty. We would also point out that instructions to the jury should be presented in written form only, where possible.

Based on the foregoing reasons, appellant’s conviction is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.

      . It was stipulated that appellant engaged in sexual intercourse with the prosecutrix on December 1, 1980.