author: BOWLING, Justice,

text:
    Samuel CALLAHAN, Garrett Johnson, John Dale, Tom Common, R. James Matthews, Eddie James Carthan and David McLaurin v. STATE of Mississippi.
    No. 53361.
    Supreme Court of Mississippi.
    Aug. 18, 1982.

      Sanders, Sanders & Clark, Alix H. Sanders, Greenwood, McTeer & Bailey, Charles Victor McTeer, Greenville, for appellants.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BOWLING and DAN M. LEE, JJ.
   BOWLING, Justice,

for the Court:

This cause involves seven appellants who were tried jointly in the Circuit Court of Holmes County for the crime of aggravated assault on a police officer acting within the scope of his duty. Initially, there were eight indictees. One met his death prior to trial. The seven appellants were tried jointly with each being convicted of the lesser offense of simple assault on a police officer acting within the scope of his duty. A conviction of this offense carries a maximum statutory penalty of five years imprisonment and a $1,000 fine. Mississippi Code Annotated, Section 97-3-7 (1972).

Upon conviction by a jury the following sentences were given appellants by the lower court:

Samuel Callahan, three years in the Department of Corrections with all suspended and $500 fine;

John Dale, three years in the Department of Corrections with all suspended and $500 fine;

Tom Common, three years in the Department of Corrections with all suspended and $500 fine;

R. James Matthews, three years in the Department of Corrections with all suspended and $500 fine;

Garrett Johnson, three years in the Departments of Corrections with all suspended and $500 fine;

David McLaurin, three years in the Department of Corrections with all suspended and $1,000 fine; and

Eddie James Carthan, three years in the Department of Corrections.

At the outset, primarily because of the extensive publicity given this case, we need to explain the function of this Court as an appellate court. It is our duty and obligation and we are restricted to consider only that which appears in the record made in the trial court and brought before us. Regardless of the extensive publicity, numerous letters and cards received by the court and any motivation therefor, we state without hesitation or reservation that the cause has been fully, fairly and adequately considered under the record before us.

The record reveals that the Town of Tchula, Mississippi, has been beset with confusion and troubles for some time. The incidents leading to the conviction of appellants occurred on the night of April 30 and the early morning of May 1, 1980. At sometime around the first of April, the exact date not being shown in the record, the police department, consisting of four or five policemen, quit their jobs because of not being paid. James Harris, who had been a member of the police department approximately four years, was an exception. He remained on his job.

The Town of Tchula operated under what is known as a “code charter.” This is the statutory authority for the operation of a town with a population under 10,000. [Code, § 21-3-1, et seq. (1972) ]. The governing body of the town consisted of a mayor and five aldermen, all elected. The statutes provide that the board of aldermen may conduct the business of the municipality at either a regular or special meeting, with the mayor having the deciding vote in the case of an equal division among the aldermen present and voting. A special meeting of the board and mayor may be called by the mayor or any two aldermen by giving written notice served on each of the governing officials.

On the morning of April 30, 1980, two of the aldermen called a special meeting for 8 p.m. that evening. Undisputedly, the statutorily required written notice was served on each of the aldermen and the mayor. There is quite a bit of confusion as to everything that occurred at the special meeting, part of which was had in the open part of town hall, after which a closed session was called in the office of the town clerk. It appears that two matters were placed on the agenda by the written special called notice: to-wit, an election of a mayor pro-tem and a chief of police. The inconsistencies as to what occurred during the closed meeting shall be discussed later under the various assignments of error.

As a result of the special meeting, one Jim Andrews who had been police chief [formerly town marshal] for ten years at a prior time, assumed the duties of police chief at about ten o’clock the night of April 30, the night of the meeting. One of the many inconsistencies is the manner and authority under which this was done, and evidence about this as reflected in the record shall be discussed later.

Appellant Mayor Eddie James Carthan received notice at either his home or place of business regarding the fact that Andrews was then occupying the police department as chief of police. It is admitted without dispute that Carthan then contacted the co-indictees and told them to come to him at once; there was a serious situation that needed to be corrected. Appellants John Dale and James Matthews were then members of the police department. Appellant David McLaurin was a member of the Board of Aldermen. The remaining appellants were what Carthan designated as “auxiliary policemen.” All of these people were instructed by Carthan to bring weapons, and all did so. This entourage, admittedly headed by Carthan, went to the town hall, which as stated included the police department, where the incidents giving rise to this cause occurred.

Appellants jointly propound the following assignments of error:

I. The court erred in denying defendants’ Motion to Quash the Indictment on grounds the defendants’ activities were privileged and did not constitute a crime.
II. The court erred in not granting appellants’ Instruction for a directed verdict.
III. The court erred in denying defendants’ motion for a directed verdict or a new trial because of discrepancies in the jury’s verdict.
IV. The court erred in granting state instruction numbers 2 and 4.
V. The court erred in denying defendants’ instruction numbers 2, 3, 6, 7, 8, 9 and 10.
VI. The court erred in that it improperly instructed the jury on inclusion of a lesser included offense.
VII. The verdict of the jury is against the overwhelming weight of the evidence.
VIII. The verdict of the jury was not unanimous.

The motion to quash the indictment was based on the grounds that appellant Mayor Carthan was at the time of the incidents giving rise to the indictment acting in his capacity as mayor; that appellant David McLaurin was acting in his official capacity as alderman; the remaining indictees were policemen and auxiliary policemen and under the charge and direction of Mayor Car-than; that the state arbitrarily chose to prosecute the charge regarding the alleged assault on policeman James Harris which was prejudicial to appellants and that appellants were bound over to the grand jury by a justice court judge related to Andrews.

We could dispose of this assignment of error by holding that it was not a proper pleading, as it was for the purpose of testing the sufficiency of the indictment. This is prohibited by prior authorities, including State v. Grady, 281 So.2d 678 (Miss. 1973). In dealing with this appeal, however, we shall discuss all issues raised by appellants and give a decision on each.

Appellants introduced considerable testimony and evidence on the motion before the trial judge at the October 1980 term of Circuit Court in Holmes County. [The trial of the cause before the jury was had at the April 1981 term.] The first witness called on the motion to quash was appellant Eddie James Carthan. He testified regarding the called special meeting on the night of April 30, 1980. In discussing the closed session during which the matter of appointing an acting police chief was taken up, Carthan testified that a motion was made by Aider-man Hayes to hire Jim Andrews as town marshal. Carthan, according to his testimony, ruled the motion out of order because, “we were not ready to entertain a motion until it had been discussed and other board members had time to consider the motion.” According to Carthan the meeting then “was dispersed.” He testified that James Harris was acting chief of police for one or two days before he appointed Johnny Dale, one of the appellants, acting chief of police on April 29. On April 29 Carthan had written a letter to this effect.

Carthan testified that after the conclusion of the Board of Aldermen meeting, he met with the police officers, including Harris, all of whom were at the town hall. Carthan told them that the police department would continue as it was until further action by the board. Carthan then went to his place of business and sometime later appellant Dale came and told him that Andrews had come to the town hall and the police department had advised him that a majority of the board had told him to assume immediately the duties of acting chief of police. Carthan then related about calling the appellants, all but two of whom he classified as auxiliary policemen to become armed and come at once. He testified that the auxiliary policemen “were not on duty 24 hours a day like a normal policemen.” He stated that he called the sheriff’s office but could get no active response, so “I immediately handled the situation myself.” The situation, according to Carthan, was that “we had a person come in off the street taking over the town and police department who had not been hired or anything.”

Carthan then related the sequences of events that occurred at the town hall and police department. He testified he led the other seven armed persons into the town hall where he asked Andrews to leave, Andrews refused, and resisted arrest by pulling a gun. He testified that it seemed a “tussle” began and Andrews got injured in the tussle. Andrews, according to Carthan, pulled the gun and pointed it at Carthan and the others. All of these men had in their hands either pistols, shotguns or rifles.

The next witness offered by appellants on the motion to quash was C. W. Johnson, now deceased. The effect of his testimony was to deny that he was in the original group led by the mayor to the town hall, but happened to be passing by at the time. He heard a gunshot and went into the town hall to see what happened. He saw Jim Andrews lying on the floor. He then left the town hall and knew nothing further about the incidents that were occurring.

The next witness offered on the motion to quash was Justice Court Judge Shirley Neal. His authority was in District Four of the County, which district did not include the Town of Tchula. He testified that Mayor Carthan called him and asked him to agree to handle the case growing out of the charges he was making against Andrews. Judge Neal had a hearing at a later time in May. He did not know the exact date. He had been a justice court judge six months. He testified that he heard testimony from appellant Dale. In addition to Dale, Mayor Carthan was the only other person present and he “conducted” the hearing. He testified he was acting for the Town of Tchula at the time of the hearing. He held that Andrews should be bound over to await the action of the next Holmes County Grand Jury.

The next witness called on the motion to quash was Jewell McPhail, who was presently serving as town clerk for Tchula. She had been clerk for ten years from 1968 to 1978. She was rehired in September 1979 and has served continuously since that time. She testified regarding the call of the special April 80 meeting by two of the aider-men. This procedure was properly handled. She further testified that at the special meeting the mayor ruled the meeting and every motion out of order. She testified regarding the motion to hire Andrews as police chief, that his service beginning immediately was approved by a majority vote of the aldermen. Those voting for such action were Hayes, Granderson and Gibson. She stated positively that “three of the aldermen voted ...” These three later signed the minutes of the meeting; the remaining two aldermen and the mayor did not sign them. She further testified that none of the then acting policemen, other than James Harris, were ever hired by the Board. She further testified that prior to the breaking up of the meeting, appellant Carthan said at least twice that “Mr. Andrews had better not show up on the street with a gun.”

The next witness called by appellants on the motion to quash was Jim Andrews. He testified “I was appointed as acting chief of police by the majority of the board of aider-men and I went to city hall and took over the office. I relieved one officer who was there, who was never hired and paid by the Town of Tchula.” He was referring to appellant Dale. He testified that he was town marshal of the Town of Tchula for a term of ten years from 1968 to 1978. He stated that after the special board meeting, he was called and told to come to a place of business where one of the aldermen worked; at that place when he arrived were the three aldermen — Hayes, Grander-son, and Gibson. They told him that a majority of the board had elected him chief of police and requested that he immediately assume that position. He went home, put on his uniform that he previously had used; armed himself and went to the town hall. He talked with appellant Dale and told him the situation. He stated that as Dale left the town hall peacefully, he heard Dale say something about “him not hearing the last of this.” He testified that James Harris, the full-time policeman was at town hall and was requested by Andrews to work the 11 to 7 shift that night. Harris agreed and went home to secure his equipment. Andrews then heard of the mayor and the other appellants coming and sent night watchman J. T. Rhyne to the home of Harris to bring him back immediately. This was done. Andrews then testified that the mayor and his men all came through the unlocked door of the town hall with weapons in their hands. Andrews, according to him, requested that the mayor sit down and discuss the entire matter, but that the may- or did not do so. Andrews then stated that Carthan and three or four others jumped on him. They were struggling when a shot was fired. This struck Andrews on the side of the head, causing him to become unconscious and fall to the floor. When he regained consciousness, he was in a puddle of blood. He testified that where he was shot there still was a scar. He had been carried to the hospital in Lexington, shortly after the incident ended. There the wound was sutured and he was released and placed under arrest by Mayor Carthan.

The next day Andrews filed affidavits against Carthan charging him with assault. A hearing was had in the county court room in Lexington before Justice Court Judge Dean Taylor, who was the sister-in-law of Andrews. The defendant was then bound over to await any action of the next county grand jury. At the hearing, Andrews further testified that James Harris had returned to the town hall and the police headquarters. When it was known that the appellants were coming, Harris went to the back room where the radio and telephone were kept and attempted to call the county sheriff. He had turned the lights off in the room, but could still see the lighted telephone numbers. He was attempting to reach the sheriff when appellants came into the main town hall room.

The next witness called by appellants on the motion to quash was James Harris. He testified he had been a town policeman for four years. He stated he was in the back room when he saw the appellants come into the town hall, and they all aimed at Mr. Andrews with their guns. He was not questioned about the remaining part of the incidents that thereafter occurred.

The last witness called by appellants on their motion to quash was Mrs. Dean Taylor. She testified she was Justice Court Judge in District 5 which included the Town of Tchula, and she was serving as municipal judge for the town. She testified that Andrews and Harris filed charges against appellants after the incidents here-inbefore related occurred. After a hearing, appellants were bound over until the next convening of the county grand jury. The witness testified that prior to her hearing, she asked the justice court judges in Districts 2 and 3 to hear the cause, but was unable to get them to do so.

The first and foremost contention in appellants’ motion to quash was that Mayor Carthan is charged by statute with superintending control of all officers and affairs of the municipality and was, at the time of the incidents hereinbefore set out, acting in his capacity as mayor. From the foregoing discussion of a portion of the testimony on the motion, and assuming it to be true, as the trial court was, and this Court is required to do, there can be no question but that it was a question of fact as to whether or not Carthan and his assembled policemen and auxiliary policemen exceeded any authority he had as mayor, or whether or not his action was taken in a reckless, improper and criminal manner. Certainly the testimony related above was sufficient to withstand attack on the charges set out in the indictment.

Next, the other appellants contend that they were acting in official capacities and under the immediate charge and direction of Mayor Carthan. It sufficies to say that assuming the mayor led them astray and gave them illegal orders, and if they followed the mayor when any unlawful or illegal actions were carried out, they would be just as much guilty as the mayor. Anderson v. State, 397 So.2d 81 (Miss. 1981); Bass v. State, 231 So.2d 495 (Miss. 1970); McBroom v. State, 217 Miss. 338, 64 So.2d 144 (1953); Hardy v. State, 180 Miss. 336, 177 So. 911 (1938); Kittrell v. State, 89 Miss. 666, 42 So. 609 (1907); and McCoy v. State, 91 Miss. 257, 44 So. 814 (1907). The testimony as to these appellants clearly withstands an attack on the indictment.

The motion contends that the state arbitrarily chose to prosecute the alleged assault on policeman James Harris. There was absolutely no proof that the state made a selective prosecution. The prosecution has the right to exercise a conscious degree of selectivity in prosecuting individuals for similar conduct. Only in rare cases may a selection of prosecution establish a prima facie case of discrimination or selective prosecution. U.S. v. Diggs, 613 F.2d 988 (D.C. Cir., 1979).

Appellants cite no authority to substantiate their contention on the above ground.

Appellants’ contention that the motion to quash should be sustained for the reason that the justice court judge for the district including the Town of Tchula, after being unable to get another justice court judge to hear the matter, in effect passing the entire matter over to the next county grand jury call, was sufficient to attack the allegations of the indictment. Again, no authority is cited for this contention. Furthermore, the court may take judicial knowledge that the presentation of evidence before a regularly convened grand jury is an entirely new proceeding and has nothing whatever to do with a preliminary hearing had before a justice court judge, not required to have legal training. The indictment charges against appellants were made solely by the grand jury and there is absolutely no charge that there was any irregularity in those proceedings.

In their brief, appellants, for the first time, state that the due process rights of appellants under the Fifth and Fourteenth Amendments of the United States Constitution were violated. In the first place, no authority whatever is cited for this contention. Furthermore, a constitutional question was not raised in the lower court or in the assignments of error to this Court. Pursuant to the requirements of Mississippi Supreme Court Rule 6(b), we cannot consider such arguments here that were not presented to the lower court, or were not preserved in the lower court and were not advanced on appeal to this Court. Additionally, even assuming that the due process question is before this Court, no authority is needed to make a definite conclusion that the charges in the indictment and the hereinabove related evidence on the motion to quash, did not result in a denial of the due process rights of appellants. We find that there is no merit in the motion to quash.

APPELLANTS’ MOTION FOR A DIRECTED VERDICT AND PEREMPTORY INSTRUCTION OF ACQUIT- ■ TAL:

As hereinbefore set out, the trial of the cause was had at the April 1981 term of Circuit Court in Holmes County, several months after the evidentiary hearing on the motion to quash the indictment. The evidence at the trial was not as lengthy as the evidence on the motion. Also, some witnesses were not called and some that did not testify on the motion were called. In considering the appeal from this point on, we consider only the proceedings at the jury trial and post-trial proceedings. For what it is worth, it is noted that a different trial judge presided at the jury trial from the one who heard the evidence on the motion to quash the indictment.

The first witness called by the state after selection of the jury was City Clerk Jewell McPhail. She testified that altogether she had been city clerk for about twelve years and was so acting on April 30, 1980. She introduced the minutes that were typed subsequent to the special meeting of the mayor and board of aldermen. These minutes showed that all six officials were present. Regarding the appointment of a chief of police, this action was taken after the mayor and board went into executive session. There was a motion by Alderman Hayes to hire Jim Andrews as police chief, with his service to begin at once. There was a second by Alderman Granderson and a third by Alderman Gibson. The minutes were signed by these three aldermen. McPhail testified that the majority of the board voted to hire a police chief at the special meeting and a salary of $700 per month set. This was reflected in the minutes. McPhail testified that three aldermen voted “yes” and two voted “no.” The ones who voted “yes” were the three set out above. The two voting “no” were Jesse Banks and one of the appellants, David McLaurin.

McPhail testified that afterwards, appellant Carthan twice made a statement that “Mr. Andrews better not be caught on the streets of Tchula with a gun.”

McPhail further testified that it would have been impossible for Andrews to have secured a bond that night and that no oath was administered to him in her presence.

In regard to the failure of the mayor’s name to be signed to the minutes, McPhail testified that he had signed hardly any of the minutes since she had been back to work as of September 1979. On cross examination as to why the “nay” votes were not typed on the minutes and notation that the motion was carried, McPhail stated that she did not know why this did not appear, but that the vote on the motion occurred.

Witness Nathaniel McCoy testified that on the night of April 30,1980, he passed by in his car Mayor Carthan’s place of business and saw the mayor and the group out in front talking. He drove on down to town hall and told Andrews and Harris about the men gathering. He then got back in his car and had not left when the appellants came down and “broke in, just push into city hall.” He testified the men had guns, pistols and rifles. The witness heard a gunshot, but he did not go inside city hall. He stated that Mayor Carthan was in front of the group. They “all just tried to go in there at one time.”

Witness Morris Davenport testified that on the night in question he was in the city hall waiting on a bus to go to Jackson to visit his sick wife. He saw the men coming in the door with guns, so he reached and got his suitcase and went out of the building. He testified he was scared.

The state next called witness Jim Andrews. Prior to Andrews taking the stand, the attorney for appellants, out of the presence of the jury, and in the court’s chambers made the following motion. “Your Honor, we would like to move at this time that the witness Mr. Jim Andrews, which is the affiant under another charge which we are not trying here today, we would like to have a motion limiting his testimony to the facts and circumstances surrounding the allegations against James Harris. The potential for prejudice in this matter is so great that we felt compelled to make this motion outside the hearing of the jury.” The court sustained this motion and instructed the attorneys to instruct witness Andrews to relate only what occurred in regard to James Harris. Andrews testified that at about 9 p.m. he was requested to come to where the three aldermen were who voted to make him police chief, and that he went there and discussed with them his appointment. All three of the aldermen were present. He was informed that he was police chief as of the adjournment of the special meeting.

Andrews, testified that he had been chief of police for ten years, from 1968 to 1978; and he still had his uniform and service revolver. He put on his uniform, armed himself and went to town hall. He testified that he informed Dale about the situation and that Dale left the city hall stating, “you haven’t heard the last of this,” or something similar.

Andrews then sent J. T. Rhyne, town night watchman, to find Officer James Harris to see if he would come and take the 11 to 7 shift. Harris came between 11:30 and 12 p.m.

Andrews further testified that the may- or, leading the other appellants, “bursted” in the front door with rifles, shotguns and pistols and took over the three, that is, Andrews, Harris and Rhyne. Andrews testified that Harris was in the small back room trying to call the sheriff for assistance; that the mayor got him out of the room and pointed a pistol at Harris’ head and “that is all I remember.”

Andrews testified that he did not have an opportunity to secure a bond or take an oath on the night of the 30th, but he took his oath the next day by signing a form that was already filled in at the town hall.

Andrews testified that James Harris was on duty at the time the incidents occurred. At the time he was in the radio and telephone room, where an officer was required to be, and was engaged in trying to locate the sheriff. Harris had been a police officer continuously for four or five years. Andrews further testified he considered himself the duly authorized city police chief because of the directions of the majority of the board of aldermen following the special meeting.

James Harris testified that he had been a police officer for the Town of Tehula over four years continuously. He testified that after Andrews was told by the three aider-men of his new job, he went home to get his equipment and his uniform. He had not completed these actions when Officer Rhyne knocked on the door and told him to come quickly that there was going to be trouble and he was needed. Harris stated about midnight he was in the small back room as he had come on duty at 11 p.m. He related about the mayor and the group coming in with shotguns, pistols and rifles while he was in the back room. The group had their weapons in their hands when they came in. He stated Andrews requested that the mayor sit down and talk the matter over. Thereafter appellant Callahan put his gun in the back room and ordered whoever was in there to come out with their hands up. Harris stated he put his hands up and started walking out the door. Just as he stepped out the door, he saw the mayor aim his pistol at his head. He thought he would be “dead in a minute” and was afraid. He stated that the mayor pulled him around and that at that time he was struck twice, once on the shoulder and once on the arm. He stated he did not attempt to pull his gun, but that during one of the times he was struck his gun fell from its holster to the floor. Harris did not know which of the group struck him, as he had been pulled around.

On cross examination Harris testified that he understood Andrews to have been made chief of police because the three members of the Board of Aldermen told him so. Harris testified positively that he was working on the night of April 30 and that he was on duty at the time the incident occurred.

The state rested its case.

The first witness called by the appellants was Johnny B. Dale, one of the appellants. He testified that at no time during the night of April 30 did he hit, point a gun at, or otherwise assault James Harris. On cross examination, an instrument was shown Dale purported to be from the mayor dated April 29,1980, appointing Dale acting police chief. He stated a couple of days before the incidents, he was so informed by the mayor. Dale testified that when the group went to the town hall, “we went inside city hall and the mayor started talking with Mr. Andrews. He told Mr. Andrews he had not been elected chief of police or was not a police officer and to go home and let the board settle it. It wasn’t up to the police officers, let the board settle it. So we left.”

Dale denied that there was an altercation or a scuffle or some sort of involvement between the people who were present, except “One.” He testified he was present when Harris came out of the back room. He did not know whether he had his hands up or not. He did not see the mayor or Harris, as at that minute his attention was focused on Mr. Andrews.

The final witness introduced by appellants was Eddie James Carthan, one of the appellants. He testified he was elected mayor of the Town of Tchula in June 1977. He recalled the special called meeting of the board of aldermen. The items listed on the special call were concerning a mayor protem and hiring a chief of police. No official action was taken on these items. He testified that any three of the aldermen could sign the minutes. He stated that the meeting was not adjourned, but that they had dispersed. He advised Dale that he would remain acting chief of police until the board met and resolved the issue. He related calling the auxiliary policemen and stated that when they went to the city hall he was talking to Andrews when he “pulled a gun on me.” He stated further “after the commotion had ended, there was some noise in the back and someone said ‘it’s someone in the back’ and he was asked to come out of the back.” Harris came out of the back, according to Carthan, and when asked to give the mayor his equipment, he did so and went home. Carthan denied pointing a gun at Harris or hitting him. “This is the first time I had knowledge of him being assaulted.” He stated that Harris was not on duty at the time. On cross examination Carthan again related his action in getting the armed group together. Upon being questioned about confusion and disagreements at the board meeting that night and at other meetings, he said, “We always have had disagreements.”

Carthan testified that the meeting was called for the purpose of hiring someone to serve as chief of police but “they did not hire anyone,” and that “we did not even make it to that subject.” Carthan admitted on cross examination that Harris would have the right to perform duties other than whatever the schedule called for.

WAS THE COURT IN ERROR BY DENYING APPELLANTS’ REQUEST FOR A DIRECTED VERDICT AND PEREMPTORY INSTRUCTION?

It is elemental that the responsibility for determining disputed questions of fact rests with the jury. This principle has been stated by this and other courts in cases too numerous to cite. A few are: Cutrer v. State, 410 So.2d 1308 (Miss. 1982); Davis v. State, 320 So.2d 789 (Miss. 1975); Ainsworth v. State, 304 So.2d 656 (Miss. 1974); McLeiland v. State, 204 So.2d 158 (Miss. 1967); and Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959).

Another elemental principle is that this Court in reviewing whether or not the jury had sufficient evidence to make its finding of fact is required to examine the facts most favorable to the party against whom the motion for directed verdict or peremptory instruction is requested, in this case the state. Bullock v. State, 391 So.2d 601 (Miss. 1980); Wright v. State, 387 So.2d 735 (Miss. 1980); and Saik v. State, 387 So.2d 751 (Miss. 1980). See also Jackson v. Virginia 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Regardless of the above set out principle, we carefully have studied every word of the trial record and state without reservation that the evidence clearly made a case for the jury to decide.

Appellants claim that they were entitled to the peremptory instruction because the state failed to prove that Harris was a police officer acting within the scope of his duty and that the acts of appellants were done with proper public authority and therefore were justifiable. From the above discussion of evidence, it is undisputed that James Harris had been a full-time police officer for the Town of Tchula for more than four years. The only question was whether or not he was on duty at the time of the incidents revealed in the record. There was a conflict on this question. Harris stated positively that he was on duty. This was confirmed by Andrews whose position was questionable, to say the least, at that time. Harris’ position was entirely different from that of Andrews. Whether or not Harris was acting within the scope of his office as a full-time policeman depends on whether or not he was performing a legal duty associated with his office as distinguished from engaging in a personal frolic of his own. United States v. Martinez, 465 F.2d 79 (2d Cir. 1972); United States v. Cho Po Sun, 409 F.2d 489 (2d Cir. 1969); cert den., 396 U.S. 864, 90 S.Ct. 140, 24 L.Ed.2d 118. See also Watkins v. State, 350 So.2d 1384 (Miss. 1977); and Gardner v. State, 368 So.2d 245 (Miss. 1979).

Harris’ position did not depend upon the “legal” status of Andrews. Conceding that the exact legal position of Andrews was questionable, the position of Harris clearly was dictated by the orders of a majority of the Board of Aldermen. Even though Car-than denied that the subject of electing a police chief was discussed at this special meeting, the testimony of the City Clerk McPhail and the minutes reveal otherwise. All of this made a question for the jury to decide as to the status of Andrews and without a doubt it was, to say the least, a question for the jury as to the status of Harris.

Appellant Carthan contends that he as mayor had authority under the applicable statutes to do what he did on the night in question. Admittedly, in addition to giving the mayor a vote in case of a tie, he had the superintending control of all the officers and affairs of the municipality and had the duty to take care that the laws and ordinances are executed. Code § 21-3-15 (1972). The question here is whether or not it was a jury question as to Mayor Carthan, along with the other appellants, exceeding that authority. We find that there clearly was such a jury question. We are without any power to overturn that finding of fact by the jury. It certainly cannot be argued that the jury had to accept as law that the mayor was exercising his statutory power properly when he got together a group of armed men and led them into the city hall with guns in their hands and the incidents occurred as hereinbefore related. The jury had the right to disbelieve the mayor when he testified that Andrews pulled his. gun at a time when seven or eight guns admittedly were pointed in Andrews’ direction. It was a question for the jury as to whether or not the mayor led his group into exceeding the statutory authority.

Appellants’ Assignments of Error Numbers 3 and 8 involve the same situation. After the jury returned its verdict, a member of the clerk’s office found twelve slips of paper in the jury room. Eleven of these had the words “guilty of simple assault” written on them and the twelfth had “guilty of simple assault on a police officer” written on it. The jury received complete instructions from the court that if they did not find appellants guilty of aggravated assault on a police officer they could find them guilty of simple assault on a police officer acting in the line of duty. The jury on instructions from the court returned seven separate verdicts as follows: “We the jury find the defendant-guilty of simple assault on a law enforcement officer.” [The name of each of the appellants was inserted where the blank appears above.] The jury was polled and each stated it was his or her verdict. The jury clearly followed the instructions of the court. The jurors found from the evidence that none of the appellants were guilty of the charge for which they were indicted and which carried a heavier penalty but found them guilty of a lesser charge of simple assault. We find no error in these assignments of error by appellants.

Appellants contend that the court erred in granting Instruction Nos. 2 and 4 for the state. We have carefully examined these instructions and find them to be proper. Instruction No. 2 authorized the jury to find the lesser offense than that charged in the indictment as we have above discussed. Instruction No. 3 advised the jury that when two or more people act in concert committing a crime, then all who participate in the common plan are equally responsible. The law is clear that persons committing crime in concert may be found equally guilty by the jury. Anderson v. State, supra; Bass v. State, supra; McBroom v. State, supra; Hardy v. State, supra; Kittrell v. State, supra; and McCoy v. State, supra.

Appellants complain of the court refusing Instructions 2, 3, 6, 7, 8, 9 and 10. At the outset, the record reveals that Instruction No. 7 was withdrawn by appellants. Instruction 10 was the request for peremptory instruction which we have already discussed.

The remaining instructions requested by appellants and refused by the trial court are as follows:

Instruction No. 2
The Court instructs the jury that at all times relevant hereto Eddie J. Carthan was the duly elected Mayor of the Town of Tchula, and as Mayor, he has superintending control of all officers and affairs of the Town of Tchula and is charged by law to take care that the laws and ordinances are properly executed.
Instruction No. 3
The Court instructs you that the Mayor has the duty to be active and vigilant in enforcing all laws and ordinances for the government of the Town of Tchula and to cause all other officers to be dealt with promptly for any neglect or violation of duty.
Instruction No. 6
The Court instructs you that before Jim Andrews could lawfully perform any act as Chief of Police or Town Marshall he must first take the oath of office and have executed and filed with the Clerk of the Town, and subject to the approval of the Mayor and Clerk, a good and sufficient bond in an amount not less than ONE THOUSAND DOLLARS ($1,000.00), nor more than TEN THOUSAND DOLLARS ($10,000.00), the exact amount having been fixed by the Board of Aldermen, which bond is conditioned upon the faithful performance of the duties of his office.
Instruction No. 8
The Court instructs you that Eddie J. Carthan, as Mayor of the Town of Tchu-la, is given the lawful power to veto, in writing, giving his reasons therefor, any measure passed by the Board of Aider-men. Any measure so vetoed may be adopted notwithstanding; if two-thirds of the Aldermen vote therefor.
Instruction No. 9
The Court instructs you that two-thirds of the five member Board of Aldermen of the Town of Tchula is four (4) votes.

The above set out instructions, the refusal of which is complained of by appellants as being erroneously refused, clearly were erroneous. They all were abstract statements of law, mostly the quoting of statutes describing the duties of municipal officials, principally the mayor. We have held in many cases that abstract instructions such as the ones complained of here should not have been given. Harkins v. Paschall, 348 So.2d 1019 (Miss. 1977); Freeze v. Taylor, 257 So.2d 509 (Miss. 1972); New Orleans J. & G. N. R. Co. v. Statham, 42 Miss. 607 (1869); 53 Am. Jur., Trial § 573, p. 451 (1945); 38 Am. Jur., Negligence § 370, p. 1089 (1941). The trial judge granted defendants’ Instruction No. D-4 which was not in the abstract and included the matters sought to be placed before the jury in the refused instructions. D-4 reads as follows:

The court instructs the jury that if you find from the evidence that the Mayor, Eddie J. Carthan believed a breach of the peace was taking place in the Town of Tchula on April 30, 1980, and because of his belief, the Mayor exercised his lawfully (sic) authority to call on the policemen and other citizen (sic) to aid in enforcing the laws and that the acts, if any, of Eddie James Carthan, John Dale, Samuel Callahan, David McLaurin, Tom Common, R. James Matthews, and Garrett Johnson toward James Harris were justified and necessary in discharging the legal duty of the Mayor or in lawfully keeping and preserving the peace, then you shall find the defendants “not guilty.”

In addition to refusing Instruction No. 6 as being in the abstract and not related to other facts necessary for consideration by the jury, the instruction relates only to the controversy as to whether or not Jim Andrews had fully qualified as chief of police on the night in question. As we have seen, this ease does not involve an alleged attack on Andrews and is not determined by whether or not he was fully qualified by not performing the acts set out in the instruction. The indictment and the trial were for an alleged attack on an admittedly full-time policeman, James Harris. The question for the jury to have considered was whether or not Harris, admittedly on twenty-four-hour service, was acting in the furtherance of that service and his duty at the time of the alleged assault. The jury was fully instructed on this question.

Appellants complain of the Court instructing the jury that they could bring back a verdict of a lesser included offense from that charged in the indictment. The trial judge gave the jury a separate instruction on each defendant and each instruction clearly and plainly advised as to the four alternatives that could be found by the jury: namely, (1) guilty as charged, (2) guilty of aggravated assault, (3) guilty of simple assault on a police officer, or (4) not guilty. In the first place there was no objection in the record to these instructions and this assignment of error should not be considered here. We, however, considered the assignment and find no error. The law is clear that on indictment for any offense the jury may find the defendant guilty of the offense as charged or any attempt to commit the same offense or may find him guilty of an inferior offense. Code, § 99-19-5 (1972). This Court has held that simple assault is a constituent offense of assault to kill and murder. Howard v. State, 212 Miss. 722, 55 So.2d 436 (1951); Blakely v. State, 165 Miss. 503, 144 So. 864 (1932); Bedell v. State, 50 Miss. 492 (1874).

It certainly cannot be said that simple assault is not a constituent offense of aggravated assault.

We already have discussed Assignment of Error No. 7. It is that the verdict of the jury is against the overwhelming weight of the evidence. As stated at the outset, we are an appellate court whose obligation and duty is to review questions of law which include the decision as to whether or not a jury had sufficient facts to make its finding. As hereinbefore emphatically pointed out, we can reach no conclusion other than this cause was purely and simply a jury question. The jury saw fit to find the appellants not guilty of the crime for which they were indicted, but guilty of the lesser offense under which each was sentenced. The imprisonment sentences for six of the appellants were suspended. The imprisonment sentence for the seventh was much less than the maximum authorized by statute.

After a careful study of the record and briefs in this cause and hearing the oral argument, we find that there is no reversible error shown. The cause is therefore affirmed as to all appellants.

AFFIRMED.

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


source: Caselaw Access Project

author: SUGG, Presiding Justice,

license: Public Domain

text:
    Carol S. AYERS and Richard J. Ayers v. J. Michael PETRO.
    No. 53181.
    Supreme Court of Mississippi.
    Aug. 25, 1982.

      See also Miss., 417 So.2d 912.
    George M. Quin, Gulfport, for appellant.
    Herbert W. Wilson, Gulfport, for appel-lee.
    Before SUGG, P.J., and HAWKINS and PRATHER, JJ.
   SUGG, Presiding Justice,

for the Court:

ON MOTION FOR STATUTORY DAMAGES

Appellee filed a petition to partite a parcel of real property in Harrison County. Appellants contested the partition proceedings and appealed from an order of the chancellor directing a sale of the property for division of proceeds. We affirmed on July 21, 1982. Carol S. Ayers and Richard J. Ayers v. J. Michael Petro, No. 53,181. 417 So.2d 912 (Miss.).

Appellee filed a motion for statutory damages under section 11-3-23 Mississippi Code Annotated (Supp.1981). Our decision on this motion is controlled by Gillen, et al, v. Stuckey, et al, 73 So. 626 (Miss.1917) which held the statute authorizing damages in an unsuccessful appeal did not apply to partition suits.

This was a suit for the partition of land, in which there was a decree in accordance with the prayer of the bill, and the appeal is from a decree confirming the report of the commissioners appointed to make the partition which decree was affirmed by this court on a former day. We are now requested by appellees to correct the judgment of affirmance, so as to award them damages upon the value of the property in dispute, or, in event we should hold that the value thereof does not appear from the record, “to amend said judgment so as to include damages at 5 per centum on the value in dispute, to be ascertained in the court below, and to remand the case to the court for the purpose of ascertaining the amount.” We are of the opinion that the decree appealed from is not one “for the possession of real property, within the meaning of sections 4926 and 4927 of the Code of 1906.” (73 So. at 627)

We follow the construction of the statute announced in Gillen, supra, and deny the motion for statutory damages.

MOTION DENIED.

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


author: BROOM, Justice,

text:
    Gary KREBS, A Minor, By and Through His Father and Next Friend, Joseph V. KREBS, Jr. and United States Fidelity and Guaranty Insurance Company v. Elise G. STRANGE; W. E. Strange, II, A Minor, By and Through His Mother and Next Friend Elise G. Strange; Carol Strange Durham; and Deddy Strange Burkhead.
    No. 53396.
    Supreme Court of Mississippi.
    Sept. 1, 1982.
    Rehearing Denied Sept. 22, 1982.

      Megehee, Brown, Williams & Mestayer, Raymond L. Brown, Pascagoula, for appellants.

      Cumbest, Cumbest & Hunter, John L. Hunter, David 0. McCormick, Pascagoula, for appellees.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   BROOM, Justice,

for the Court:

Certified to this Court by the United States Court of Appeals for the Fifth Circuit, 658 F.2d 268, are questions which arise out of a garnishment proceeding brought in the United States District Court for the Southern District of Mississippi, (being Federal Cause Numbered 80-3594), by the ap-pellees, Elise G. Strange, et al., against United States Fidelity and Guaranty Company (USF&G), and Gary Krebs. Disclaiming coverage of appellant Krebs by virtue of an exclusionary endorsement in the policy covering the automobile, USF&G appealed from an adverse judgment of the United States District Court to the Fifth Circuit Court of Appeals. The United States Court of Appeals for the Fifth Circuit perceived this diversity action as centering around issues of contract and insurance law which were deemed unsettled in Mississippi jurisprudence. Therefore, the Fifth Circuit Court availed itself of the certification procedures to the Supreme Court of Mississippi set out in Mississippi Supreme Court Rule No. 46.

The following questions were certified to the Supreme Court of Mississippi by the United States Court of Appeals for the Fifth Circuit:

1. Does forbearance to cancel an insurance policy on renewal date constitute a valid consideration for an endorsement to the policy?
2. Was there valid consideration for the student exclusion (student risk) endorsement to the McLeod automobile liability insurance policy?
3. Was the endorsement contrary to the Mississippi Motor Vehicle Safety Responsibility Act or public policy, or ambiguous or contrary to the Omnibus Clause of the policy?

It should be noted that if the first and second questions are answered in the negative, the third question becomes moot.

On September 29, 1973, an accident occurred on Highway 6, between Batesville and Oxford, Mississippi, about 15 miles west of Oxford, in college football traffic. A 1972 Chevrolet Monte Carlo automobile, owned by W. F. McLeod and driven by Gary Krebs, with McLeod’s daughter, Dorothy Lou, as a passenger, struck the rear of an automobile driven by William Ernest Strange, age 66. Later, at the game, Strange was stricken and taken to the Oxford Hospital, where he died of cardiac ar-rythmia.

McLeod owned an automobile insurance policy on the Monte Carlo, with such policy period running from September 7, 1973, to September 7, 1974. This policy included a “student exclusion” endorsement which had been added to the policy on December 4, 1972, during the preceding policy period. When this endorsement was added, in December of 1972, there was no rate change or adjustment of premium related to the endorsement.

The addition of the “student exclusion” endorsement was occasioned by Mr. McLeod’s purchase of the 1972 Monte Carlo for use by his daughter at the University of Southern Mississippi. Near Christmas of 1972, in accordance with the requirements of the insurance policy, Mr. McLeod notified his insurance agent of the purchase of the automobile, and was informed of the corresponding additional premium for addition of the vehicle. When the agent was informed as to the intended purpose of the automobile, he advised Mr. McLeod that he would be required to sign the student exclusion endorsement or else the insurance policy would be terminated upon its next anniversary date. Verbatim language of the stipulation is:

McLeod was familiar with “student exclusion” endorsements, having had one on his policy when his older daughter was in school, and, also, he was informed by the agent in December, 1972, and McLeod understood, that his coverage would be terminated or not renewed on its anniversary date (September 7, 1973) if he failed to sign and accept the “student exclusion” endorsement.

Most significantly, absent from the stipulation of the litigants is any commitment on the part of USF&G or its agent that the policy would not be terminated, or that it would be renewed. Mr. McLeod signed the endorsement.

The “student exclusion” endorsement provided that USF&G would not provide automobile insurance liability coverage to any automobile owned by Mr. McLeod which was being operated by “any student enrolled in any school, college or university,” with the exception of Mr. McLeod’s daughter, Dorothy Lou. At the time of the accident on September 29,1973, Gary Krebs was operating the automobile in question. At that time, he was enrolled as a student in the University of Southern Mississippi. He and Dorothy Lou McLeod, the insured’s daughter, were en route from Hattiesburg to the Ole Miss — Southern ball game in Oxford, Mississippi.

In August of 1974, a suit was filed against Gary Krebs, his insurance carrier, Allstate Insurance Company, and USF&G. USF&G declined to furnish a defense and declined coverage for Krebs under McLeod’s policy on the grounds of the “student exclusion” endorsement. Krebs was defended by Allstate, which settled the case for Krebs for $5,000 of its $10,000 coverage. A covenant not to prosecute the claim against Krebs was executed and a default judgment was entered against Krebs for $100,000. The garnishment proceeding instituted in the United States District Court for the Southern District of Mississippi is based upon the $100,000 default judgment entered against Gary Krebs in cause # 9195 in Jackson County Circuit Court. Jurisdiction in the garnishment proceeding was based upon diversity pursuant to 28 U.S.C. § 1332 (1976), and was submitted to the District Court by agreement of the parties on a stipulation of testimony and evidence and memorandum briefs.

The District Court held for Mrs. Strange, et al., holding that the addition of the “student exclusion” endorsement was not supported by consideration, and hence never became a part of the policy of insurance.

The first issue we must decide is whether the “student exclusion” signed by Mr. McLeod was in force at the time of the accident between Gary Krebs and William Strange. The exclusion could have become a part of the insurance policy issued to Mr. McLeod at one of two times: (1) at the time of Mr. McLeod’s agreement to sign the endorsement (pursuant to the modification procedures expressed in the terms of the contract), or (2) on September 7,1973, when the contract itself was renewed.

We begin with the proposition which requires no citation of authority that insurance policies are matters of contract and the interpretation of insurance contracts is according to the same rules which govern other contracts. In order to have an enforceable insurance contract, the essential elements are an offer and an acceptance, supported by consideration. When the insurance company’s offer to issue the insurance is accepted by the insured and premium payment is made, the contract is formed and the rights and obligations of the respective parties “lock in”. The rights under the policy may be altered only through a modification to the insurance policy, and such a modification constitutes a new agreement which must likewise be supported by a consideration. United States Fidelity and Guaranty Company v. Mathis, 236 So.2d 730, 732 (Miss.1970).

In the instant case, Mr. McLeod purchased a new car in December, 1972, and pursuant to the terms of his policy, he notified his agent of the purchase so as to include the new car under the policy’s coverage. In accordance with the original terms of the policy, USF&G was entitled to an additional premium for the newly purchased car, which they received, but the parties agree that the addition of the “student exclusion” did not affect the premium rate. The agent then informed Mr. McLeod that he was required to sign the “student exclusion” endorsement or face automatic termination at the end of the policy period. This endorsement constituted an alteration in the terms of the original policy as it excluded coverage from a sizable number of potential drivers. USF&G readily admits that the increased premium to cover the additional vehicle did not include any reduction in premium as consideration for Mr. McLeod’s new reduced coverage (student exclusion endorsement). In order to constitute a valid modification, USF&G must have suffered some form of concurrent legal detriment, whether in the form of present performance (or forbearance) of an act, or a promise of such in the future. USF&G contends that had Mr. McLeod refused to sign the “student exclusion” endorsement, they would have automatically terminated the policy at the end of the policy period. It is important to note that USF&G had the right to terminate the policy immediately only upon the occurrence of one of the conditions specified in paragraph 17 of the policy. Inasmuch as none of those conditions had occurred, USF&G was bound to provide coverage, pursuant to the terms of the insurance policy between itself and Mr. McLeod, until the end of the policy period on September 7, 1973. USF&G contends that the forbearance of an automatic termination of the policy at the end of the policy period constituted consideration for the modification to the policy. We disagree and hold that such forbearance was not such a valid consideration.

When the period of an insurance policy expires, then in the absence of specific language to the contrary, the contract between the parties terminates. When termination of the contract occurs, the insurance company has.nothing to cancel and there is no legal right or privilege as to that contract which the insurance company may forbear and for which such forbearance may serve as consideration for a modification. The only right that the insured or the insurer possesses at the termination of such an insurance policy is the right to make an offer or to decline an offer to enter into a new insurance contract by means of either a new insurance policy, or by means of an agreement to renew the previously existing policy. In substance, USF&G was saying to Mr. McLeod when they proposed the modification (student exclusion endorsement) of the insurance policy: “If you don’t agree to this modification, then upon the termination of the present insurance contract we will not make an offer to renew the insurance policy. On the other hand, if you agree to this modification, then we may or we may not make an offer to renew this insurance policy.” When cast in such language, the insurance company’s “promise” is clearly illusory. In his work on Contracts, Professor Corbin dealt with the subject of illusory promises as consideration:

If what appears to be a promise is an illusion, there is no promise; like the mirage of the desert with its vision of flowing water which yet lets the traveller die of thirst, there is nothing there. By the phrase “illusory promise” is meant words in promissory form that promise nothing; they do not purport to put any limitation on the freedom of the alleged promisor, but leave his future action subject to his own future will, just as it would have been had he said no words at all.
If A asks B to promise some future performance and B makes no answer, B has made no promise. This is true, even though when the future time arrives B may then be willing to perform as requested and may actually so perform. If, under these circumstances, A thinks that B has made a promise, he is under an illusion. The same is true if instead of making no answer B had replied, “I predict that when the time comes I shall be willing to do what you ask.” A prediction of future willingness is not an expression of present willingness and is not a promise. To see a promise in it is to be under an illusion. We reach the same result if B’s reply to A is, “I promise to do as you ask if I please to do so when the time arrives.” In form this is a conditional promise, but the condition is the pleasure or future will of the promisor himself. The words used do not purport to effect any limitation upon the promis- or’s future freedom of choice. They do not lead the promisee to have an expectation of performance because of a present expression of will. He may hope that a future willingness will exist; but he has no more reasonable basis for such a hope than if B had merely made a prediction or had said nothing at all. As a promise, B’s words are mere illusion. Such an illusory promise is neither enforceable against the one making it, nor is it operative as a consideration for a return promise.

Corbin, Contracts, § 145 at p. 211 (1 Vol. Ed. 1952).

With regard to the subject of consideration, it is important to note the distinction between an illusory promise and actual forbearance. Appellant USF&G points to the case of United States Fidelity and Guaranty Company v. Mathis, supra, as an example of where this Court has explicitly recognized that forbearance, even when implied as opposed to being expressly agreed upon by the parties, is sufficient as consideration. USF&G’s reliance upon the cited case is misplaced. In Mathis, the insurance company had the right upon the occurrence of Jerry Mathis’ third accident, to an immediate cancellation of the insurance policy. This was their legal right. At this point they made an offer to the insured that if he would sign an endorsement excluding coverage for Jerry Mathis, the policy would be continued at a reduced premium. When the renewal policy was sent to John Mathis, this endorsement was inadvertently left off. Nonetheless, the premium reflected the reduced rates resulting from the endorsement excluding coverage on Jerry Mathis. Likewise, upon discovery of such omission, the insurance company immediately took steps to correct the omission. It was upon the totaiity of the surrounding circumstances that we found an implied promise to forbear cancellation. In the instant case there are no such surrounding circumstances.

In actuality, the insurance company was making a promise not to offer to renew the insurance contract upon the termination of the present policy. This promise existed as a nudum pactum and hence was unenforceable and could not constitute consideration. We must, therefore, conclude that the “student exclusion” endorsement signed by Mr. McLeod in December of 1972 was void for lack of consideration.

Although the modification adding the “student exclusion” endorsement was void at the time of its signing by Mr. McLeod, one may ask whether, upon the subsequent renewal of the insurance policy on September 7, 1973, for new consideration, the endorsement was included as one of the terms of the new contract. This proposition was not specifically included in the questions certified to this Court, nor was it briefed or argued by the appellants, who conceded the point at oral argument.

Our answers to questions numbered (1) and (2) as submitted to us by the United States Court for the Fifth Circuit are both in the negative, as qualified by the foregoing discussion. These answers are disposi-tive of the cause, and therefore we do not deem it appropriate to deal with question numbered (3) certified to us.

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

      . This is contrary to the statement in appellant’s brief at page 6 which makes the unsupported assertion that there was “... an agreement not to terminate coverage, to renew coverage, on anniversary date .... ”
      Our careful search of the stipulations of facts and testimony fails to reveal any promise or agreement on the part of USF&G, or its agent, when the agent obtained policyholder McLeod’s assent to the addition of the student exclusion endorsement to the policy. Neither of the litigants’ briefs refer to any place where such a promise may be found.
      Interestingly enough, there is found in the Memorandum Opinion of United States District Judge Nixon, a reference to the defendant’s (USF&G) “promise not to cancel the policy .... ” Of course, we are bound to consider only testimony found within the stipulations submitted to this Court.


author: PRATHER, Justice,

text:
    Carol Lee SMITH and Mississippi Land and Real Estate Co. v. Billy R. SULLIVAN and Louise Sullivan and the Mississippi Real Estate Commission.
    No. 53392.
    Supreme Court of Mississippi.
    Sept. 1, 1982.

      Abe A. Rotwein, Jackson, for appellants.
    Cupit & Maxey, Glenda W. Tomlinson, Jackson, for appellees.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The Mississippi Real Estate Commission held a hearing as a result of complaints filed by the Sullivans against their real estate broker, C. L. Smith. The Commission concluded that Smith had acted for more than one party in a transaction without the knowledge of all parties for whom he acted and that he was also guilty of improper dealing. As a result of this determination, the Commission exercised its statutory power to revoke Smith’s license to act as a real estate broker. Smith appeals from the decision of the Commission and its af-firmance by the Circuit Court of the First Judicial District of Hinds County. We affirm.

I.

The Sullivans were owners of 220 acres of undeveloped land in Simpson County. Jackson Production Credit Association [hereinafter referred to as JPCA] held a mortgage security interest in 212V2 acres of the land, and the Sullivans were delinquent in the payments owed to JPCA. The Sulli-vans held TA acres of the land free and clear of the debt.

Since the Sullivans owed in excess of $50,000 to JPCA, which was planning to foreclose soon, they sought out Smith to list for sale 112% acres of the land at $500 an acre, but reserving their mineral rights in themselves. The parties signed a listing on March 22,1978 whereby Smith, a first cousin of Mr. Sullivan, was given a three month exclusive right to sell the land for the Sulli-vans until June 22, 1978 at a commission of 10 percent of sales price. If sold under the terms of the listing, the Sullivans would be able to satisfy the debt owed to JPCA and also retain 107V2 acres of land and the minerals under all acreage.

Employees of Smith’s real estate company testified that the company ran regular ads in several local newspapers in an effort to sell the land. R. C. Thomas, a licensed real estate salesman with one of Smith’s companies, added that there were only two offers to purchase the property. Thomas also claimed that the land could not sell for more than $350.00 an acre. In August, after expiration of the listing, Smith found a prospective purchaser by the name of K. R. Brown.

The Sullivans inquired of Smith as to the financial background of Brown, and Smith responded that Brown was a man who was financially sound and owned a real estate development at Harrisville in Simpson County. The Sullivans agreed to have Smith negotiate with Brown. Brown offered to purchase the II2V2 acres that were originally listed, but additionally required the Tk acres of unmortgaged land, plus the mineral rights to all 120 acres. The time for foreclosure was drawing near and Smith persuaded the Sullivans, although regretfully, to'agree to those terms. An option to purchase the land with all minerals for $54,-000.00 ($450.00 an acre) was thereby granted to Brown on September 1, 1978 and was to expire on November 1, 1978.

The Sullivans told Smith that the $54,-000.00 purchase price would not pay for both the mortgage debt and his 10 percent sales commission. Smith said he would forego the commission, since he believed that he could make a commission later by selling the land for Brown.

Before Brown exercised the option, Smith obtained and paid for bulldozer and survey work on the land. This was done without the consent of the Sullivans. On September 13, the Sullivans were contacted by one J. Miller, a man who sought to lease the mineral rights on the land. Miller wanted to lease both the Sullivans and Brown’s optioned property together at $50.00 an acre and would not negotiate for less that the total. This would have given the Sulli-vans an additional $5,200.00 for their minerals.

The Sullivans decided that they needed to talk with Brown about working out the mineral leasing prospects with Miller, but Smith refused to arrange such a meeting or to give them Brown’s phone number. Smith claimed that Brown had a sick child and did not want to be bothered. The Sullivans persisted in their attempts to locate Brown, and contacted the Secretary of State’s office, and people in the Harrisville area, and the Better Business Bureau, among others. They finally learned that K. R. Brown was a woman who did not own any real estate in Harrisville but who had been employed on several occasions by Smith to do interior decorating. Additionally, the Sullivans also learned that Smith had cosigned a loan application to purchase the land at JPCA with Kay R. Brown. Incidentally, Smith owned a corporation named World Petroleum Limited, and engaged in business of buying and developing petroleum interests.

In light of these circumstances, Mrs. Sullivan contacted JPCA and requested that they decline to grant a loan to Brown. Woody Toler, an assistant vice president and loan officer at JPCA testified that the loan was thereafter not acted upon due to the fear of litigation. Toler also introduced into evidence a deed of trust on the land which was signed by both Smith and Brown. However, the title binder indicated that the land was to be conveyed solely to Brown. Toler further claimed that upon making the application, Smith told him not to tell the Sullivans about the loan application. When Smith was questioned about this matter, he admitted that he made such a statement to Toler but denied that he was involved in the purchase of the land. He explained that he requested Toler not to tell the Sullivans about the application because he did not want them to get the wrong impression.

When Kaye Brown testified, she stated that Smith was her agent for the purpose of buying the land. Furthermore, Smith admitted that he advised Brown in these matters. Brown claimed that Smith cosigned her loan application because she was recently divorced and had no credit. She allegedly intended to repay Smith for the bulldozing and surveying, and she added that Smith was to have no title to the land.

Several lawsuits ensued. The Sullivans refused to sell the property. Thus, Brown filed a suit for specific performance to enforce the option to purchase. Smith then wrote the Sullivans and requested that they pay him a commission for the sale of the land to Brown. When they refused to pay, Smith sued for his commission in the circuit court. Meanwhile, the Sullivans contacted one Conrad Martin, a real estate broker. He talked with the Sullivans in July of 1979 about selling their land if the litigation resulted in the Sullivans’ favor. He was able to find a tentative purchaser who was willing to pay $650.00 an acre, and who agreed to take only !4 of the mineral rights. On the basis of this evidence, the Commission concluded that the aforementioned conduct of Smith constituted violations of section 73-35-21(a) and (m) of the Mississippi Code Annotated • (1972) which prohibited: (1) acting for more than one party in a transaction without the knowledge of all parties and (2) improper dealing. The Commission thereby ordered the revocation of licenses held by both Smith and his company, Mississippi Land and Real Estate. That ruling was affirmed by the Circuit Court of the First Judicial District of Hinds County on July 20, 1981.

II.

Sections 73-35-1 through 73-35-37 of the Mississippi Code Annotated (1972 & Supp. 1981) provide for the licensing and regulation of real estate brokers and salesmen. Most jurisdictions have similar statutory schemes, and these statutes are designed to protect the public from incompetent or dishonest real estate professionals. See 12 Am.Jur.2d Brokers § 19 (1964) (revocation or suspension of license); Annot., 68 A.L. R.3rd 530, 532 (1957) (background and general principles of regulatory statutes). Under our statutory framework, for example, section 73-35-7 permits licenses to be granted only to persons who are trustworthy and competent to transact real estate business in such a manner as to safeguard the interests of the public. Furthermore, to be granted a license, the broker or salesman must have recommendations by three citizens certifying that he has a good reputation for honesty and trustworthiness. Mississippi Code Annotated § 73-35-9 (1972).

In order that these high standards be maintained, the Mississippi Real Estate Commission has been empowered to conduct hearings for the refusal, suspension or revocation of licenses for various grounds. Miss. Code Ann. § 73-35-21 (1972). Thus, a broker or salesman may be denied the privilege to conduct such business for various acts such as where (1) he has acted for more than one party in a transaction without the knowledge of all parties for whom he acts; or where (2) his conduct constitutes bad faith, untrustworthiness, or dishonest and improper dealings. Id. The prohibition of such acts follows the long established recognition that a broker holds a fiduciary relationship with its attendant duties to his principal. A broker authorized to sell his principal’s realty has a fiduciary relationship requiring full disclosure, frankness and honesty in his dealings with the principal. Blanks v. Sadka, 241 Miss. 821, 133 So.2d 291 (1961); VanZandt v. VanZandt, 227 Miss. 528, 86 So.2d 466 (1956). Moreover, he must not put himself in a position antagonistic to the principal’s interest by fraud or by representing others with interests adverse to his principal’s interests. Randal Craft Realty Co., Inc. v. Unijax, Inc., 653 F.2d 1066 (5th Cir. 1981); Roy Realty Co. v. Burkhardt, 146 Miss. 270, 111 So. 289 (1927). See also Restatement (Second) of Agency, §§ 376-398 (1958) (enumeration of duties that agents owe their principals). In other words, a broker is subject to a duty to act solely for the benefit of the principal in all matters connected with the agency. Id. at § 387.

III.

The two dominant issues involved here are (1) whether Smith was still in a broker-fiduciary relationship after the expiration of the listing; and (2) whether the evidence was sufficient to prove violations of section 73-35-21.

With regard to the first issue, it is generally said that if the authority or agency is conferred for a specific time, it expires upon the completion of that period. 3 Am. Jur.2d Agency section 35 (1962); Restatement (Second) of Agency § 105 (1958). Upon termination of that agency, a broker can deal with his former principal as freely as with any third person so long as he ceases to have confidential relations with him. W. Seavey, Handbook of the Law of Agency 250 (1964). However, under Mississippi law, a contract which has expired under its own terms may be extended by a broker’s actions and the principal’s acquiescence. Ivor B. Clark Co. of Texas, Inc. v. Southern Business & Industrial Development Co., 399 F.Supp. 825 (S.D.Miss.1974); Smith v. London, Stetelman & Kirkwood, Inc., 185 So.2d 150 (Miss.1966); Partee v. Pepple, 197 Miss. 486, 20 So.2d 73 (1945). In the instant case, Smith obviously viewed himself as the Sullivans’ agent after expiration of the listing since he charged them a commission and filed suit on those grounds. Furthermore, conversations between Smith and the Sullivans indicated that an implied or oral contract still existed. We therefore conclude that Smith was a broker-agent of the Sullivans throughout the time period in question and consequently owed fiduciary duties to the Sullivans.

With regard to the second issue concerning the adequacy of the evidence, an appellate court has power to review any order made by an administrative commission to determine whether it is supported by substantial evidence or whether it is purely arbitrary and capricious. Mississippi Ins. Comm. v. Savery, 204 So.2d 278 (Miss.1967); Dixie Greyhound Lines, Inc. v. Miss. Pub. Serv. Comm., 190 Miss. 704, 200 So. 579 (1941). In this case, several witnesses testified that Smith attempted to deceive the Sullivans as to the identity of Brown and his co-signing of a loan. Furthermore, both Smith and Brown stated that Smith “advised” Brown. In other words, he was acting as the agent of both the Sullivans and Brown. In addition, the evidence also suggests that Smith himself had an interest in the purchase of the land. We therefore conclude that there was substantial evidence showing violations of section 73-35-21.

IV.

One last issue must be considered. The appellant, for the first time on appeal, contended that one of the commissioners on the Mississippi Real Estate Commission re-cused himself after the first hearing day, but continued to participate in the hearing after doing so, thereby denying him a fair trial. He did not vote in the decision, nor was the reason for the recusal stated in the record. This Court cannot say that this participation was prejudicial to or against the appellant since the personal reason for recusal was not stated in the record.

It is highly improper for a hearing officer to continue to participate in any hearing once he has recused himself, and the procedure to follow should be that he completely absents himself from the hearing and avoids contact with the other hearing officers. However, this Court has held that a party desiring to suggest disqualification of a judge must do so before the trial of a case or as soon as counsel learns of facts calling for a disqualification. City of Biloxi v. Cauley, 332 So.2d 749 (Miss.1976); Dixon v. Rowland, 143 Miss. 270, 108 So. 807 (1926). Since the appellant failed to timely object to the commissioner’s participation, this issue may not be considered now on appeal.

AFFIRMED.

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


author: HAWKINS, Justice,

text:
    Willie AGEE v. BAY SPRINGS FOREST PRODUCTS, INC. and United States Fidelity & Guaranty Company.
    No. 53751.
    Supreme Court of Mississippi.
    Sept. 1, 1982.

      Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, Brooke Ferris, Laurel, for appellee.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   HAWKINS, Justice,

for the Court:

Willie Agee has appealed from a denial of permanent partial disability benefits under the Mississippi Workmen’s Compensation Act. We affirm.

Mr. Agee, a man of limited education, was employed as a truck driver when he sustained a low back injury because of some heavy lifting. Following conservative medical therapy, an orthopedic surgeon performed a lumbar laminectomy at the L-5 level. Approximately four months later the doctor advised Mr. Agee to return to full-time work, but to protect his back and avoid heavy lifting. The doctor gave him a 5-10% permanent partial disability rating to the body as a whole.

Upon his return to work, his employer assigned him to operate a fork lift at the same wage as before his injury. Thereafter he received two successive wage increases.

This case is on appeal to us from an order of the full commission, affirmed by the circuit judge, denying Mr. Agee permanent partial disability benefits under the Workmen’s Compensation Act.

LAW

Ordinarily, it should require no argument to persuade any fact-finding body that Mr. Agee, who had undergone surgery, and whose back manifestly is not, and never will be, as strong as it was prior to injury, has suffered at least some loss in wage-earning capacity in his only means of livelihood: low-skilled manual, or semi-manual, labor.

We have a well-settled rule of law, however, that in determining wage-earning capacity in the situation where an injured employee returns to work and receives the same or greater earnings as those prior to his injury, there is created a rebuttable presumption that he has suffered no loss in his wage-earning capacity. See, e.g., Smith v. Picker Service Co., 240 So.2d 454 (Miss.1970); Wilcher v. D.D. Ballard Construction Co., 187 So.2d 308 (Miss.1966); Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 61 So.2d 789 (1953); Dunn, Mississippi Workmen’s Compensation § 67 (2d Ed. 1967).

An attorney faced with this fact in preparing his case has every opportunity to rebut the presumption by showing a number of surrounding facts and circumstances that the worker’s post-injury wages alone are not necessarily decisive. Absent such showing the presumption stands. The record reveals no evidence offered to rebut the presumption created by the employer-carrier.

In this posture neither the commission nor the circuit court judge had any alternative but to deny permanent partial disability benefits.

AFFIRMED.

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


author: WALKER, Presiding Justice,

text:
    E. B. SESSUMS v. STATE of Mississippi.
    No. 53636.
    Supreme Court of Mississippi.
    Sept. 1, 1982.

      Jerry L. Bustin, Forest, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P. J., and DAN M. LEE and HAWKINS, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Scott County, Mississippi, wherein the appellant, E. B. Sessums, was convicted of larceny of one black angus heifer and sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections. Although he has raised several assignments of error on appeal, we confine this opinion to one error which requires the judgment of the lower court be reversed.

On November 20, 1980, Douglas Turner reported to the Scott County sheriff the fact that one of his black angus heifers was missing from his herd.

During trial, the evidence on behalf of the State was to the effect that Richard Knowles had allegedly struck a cow on the roadway with his truck on November 19, 1980. After hitting the cow, Knowles had gone to the home of Glenn Risher, appellant’s son-in-law, and told him “... he had an old cow down, and he needed some help to get it up.” Sometime after Knowles arrived at Risher’s, the appellant stopped by his son-in-law’s. All three men left in Knowles’ truck to help with the cow. On the way they stopped at the home of Earnest Lewis and asked for his help with the cow.

The evidence is clear that at the time the men arrived at the cow’s location it was dead. There was no evidence placing Ses-sums at the scene when the cow was killed. There was no evidence that the cow had been shot. Lewis testified that a little of the meat from the cow was bloodshot as if something had “hit it.”

Furthermore, there is no testimony or evidence from which it may reasonably be inferred that Sessums killed the cow or had knowledge the cow did not belong to Knowles.

Sessums was indicted pursuant to Mississippi Code Annotated section 97-17-53 (1972) of larceny of a cow belonging to Douglas Turner. The statute provides in pertinent part:

If any person shall feloniously take, steal and carry away any neat or horned cattle, or knowingly buy, trade or accept such stolen livestock, he shall be guilty of larceny....

The term “livestock” as defined in Webster’s Third New International Dictionary (1971) includes “Animals of any kind kept or raised for use or pleasure; esp: meat and dairy cattle and draft animals — opposed to dead stock.”

In the most recent case of Knowles v. State, 410 So.2d 380 (Miss.1982), we stated:

This statute has consistently been construed to mean that such animal was alive when stolen and when the proof shows the animal was dead when the larceny transpired, no conviction can be had thereunder. Davis v. State, 165 Miss. 693, 146 So. 598 (1933); Rainwater v. State, 155 Miss. 684, 124 So. 801 (1929); and Golden v. State, 63 Miss. 466 (1886). However, when the animal alleged to have been stolen is killed as a means of making its theft possible, the crime of cattle theft has been held committed, the same as if the animal was alive at the time of its asportation. See -52A C.J.S. Larceny § 3(2)b (1968).

The appellant made a motion for a directed verdict, which was overruled, after the State rested its case in chief. No testimony was offered on behalf of the appellant. Based on this record, we are of the opinion the appellant’s motion for a directed verdict should have been sustained. Therefore, the judgment of the lower court is reversed, the sentence of appellant dismissed and appellant discharged.

REVERSED AND APPELLANT DISCHARGED.

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

ROY NOBLE LEE, J., takes no part.


text:
    Marion K. WOODS, d/b/a Woods Auto Sales, Inc. v. Phillip McDADE, et al.
    No. 53395.
    Supreme Court of Mississippi.
    Sept. 1, 1982.
    Nick Crawford, Greenville, for appellant.
    Campbell & DeLong, Fred C. DeLong, Jr., Greenville, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before WALKER, P. J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


text:
    Pearl HOWARD v. Milton D. TUTWILER, et al.
    No. 53380.
    Supreme Court of Mississippi.
    Sept. 1, 1982.
    Alexander, Johnston & Alexander, Robert G. Johnston, Cleveland, for appellant.
    Levingston & Jacks, Gerald H. Jacks, Cleveland, William A. Murrain, Jackson, for appellees.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

Before WALKER, P. J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


text:
    Warren Robert BROWN v. STATE of Mississippi.
    No. 53778.
    Supreme Court of Mississippi.
    Sept. 1, 1982.
    Warren Robert Brown, pro se.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Bill Allain, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

AFFIRMED.


text:
    CITY OF JACKSON, et al. v. DeSOTO, INC.
    No. 53421.
    Supreme Court of Mississippi.
    Sept. 1, 1982.
    Beach, Luckett & Ross, John Luckett, Robert Glen Waddle, Jackson, for appellants.
    Watkins & Eager, Velia A. Mayer, Jackson, for appellee.
   Appeal from ■ Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.


text:
    Bobby R. ANDREWS v. STATE of Mississippi.
    No. 53762.
    Supreme Court of Mississippi.
    Sept. 1, 1982.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, Robert S. Crump, III, Cleveland, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.


text:
    In the Interest of G.P., a Child.
    No. 52714.
    Supreme Court of Mississippi.
    Sept. 1, 1982.
    Alfred Lee Felder, McComb, for appellant.
    William Ben Regan, Magnolia, for appel-lee.
    Rehearing Denied Sept. 22, 1982.
   Appeal from Youth Court, Pike County; Thad Leggett, III, County Youth Court Judge.

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

REVERSED AND RENDERED.

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


text:
    Hubert Harvey FRIERSON v. STATE of Mississippi.
    No. 53719.
    Supreme Court of Mississippi.
    Sept. 1, 1982.
    Lawrence D. Arrington, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Pearl River County; Robert I. Prichard, III, Judge.

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

AFFIRMED.


text:
    Teleatha Dion BERRY v. NELSON HALL CHEVROLET, INC.
    No. 53663.
    Supreme Court of Mississippi.
    Sept. 8, 1982.
    Dan Coit, Meridian, for appellant.
    Arlo Temple, Meridian, for appellee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

Before WALKER, P. J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


text:
    Daniel G. GONZALEZ v. Martha Gonzalez WHITEHEAD.
    No. 53679.
    Supreme Court of Mississippi.
    Sept. 8, 1982.
    George S. Shaddock, Pascagoula, for appellant.
    Wiesenburg & Reed, Karl Wiesenburg, Pascagoula, for appellee.
   Appeal from Chancery Court, George County'; Robert H. Oswald, Judge.

Before WALKER, P. J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


text:
    ARVIN INDUSTRIES, INC. v. Glenda Diane McKISSACK.
    No. 53736.
    Supreme Court of Mississippi.
    Sept. 8, 1982.
    Mitchell, McNutt, Bush, Lagrone & Sams, John S. Hill, Tupelo,-for appellant.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Thomas J. Gardner, Judge.

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

AFFIRMED.


text:
    CLAY BOHN CHRYSLER, INC. and The Chrysler Corporation v. Hays LIZANA.
    No. 53389.
    Supreme Court of Mississippi.
    Sept. 8, 1982.
    Ladner & Emil, Kendall Reeves, Gulfport, for appellant.
    Blackwell & Galloway, Ben F. Galloway, Gulfport, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

REVERSED AND REMANDED.

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