author: ROBERTSON, Presiding Justice,

text:
    Mavis W. STACY, et al. v. TOMLINSON INTERESTS, INC.
    No. 52922.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Heidelberg, Woodliff & Franks, Kenneth I. Franks, Glenn Gates Taylor, Jackson, for appellant.
    Gerald, Brand, Watters, Cox & Hemle-ben, Martha W. Gerald, Walker L. Watters, Albert D. Malone, Jackson, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Mavis W. Stacy, et al., royalty and mineral interest owners, appeal from an Order of the Circuit Court of the First Judicial District of Hinds County, Mississippi, finding that an order of the Oil and Gas Board reforming a 640-acre gas drilling unit to an 80-acre oil drilling unit was supported by substantial evidence.

Tomlinson Interests, Inc., et al., (TII), cross-appeal because the Court held that, while the order of the Board was supported by substantial evidence, nevertheless it was void because the Board did not specifically find that the reformation of the 640-acre gas drilling unit to an 80-acre oil drilling unit would protect the coequal and correlative rights of all parties owning an interest in the pool. In one place in its order, the Board used the word “unit” rather than “pool”.

In their brief, Stacy, et al., say:
“The principal question is, what lands can be effectively and efficiently drained by the Well and, therefore, should be included in the unit for the Well?”

They contend that the 80-acre oil drilling unit should be an east/west unit, rather than a north/south unit.

The only expert who testified before the Board was geologist Robert Walker, who testified for his employer, TII. His testimony was that the James Sandstone Oil Pool had not been sufficiently drilled to determine the perimeter limits of the pool, that the two exploratory wells showed a fault running in a northwest/southeast line just below the 80-acre north/south drilling unit proposed by TII, composed of the west 40 acres of the E Vz of SW Vi, and the east 40 acres of the W V2 of SW Vi, of Section 36, T 6 N, R 20 W, Lawrence County, Mississippi.

Walker’s opinion was that there would be more wells drilled if there were a north/south unit rather than an east/west unit, as proposed by Stacy, and that the ultimate result would be the better and more efficient development of the entire oil pool and the better protection and safeguarding of the coequal and correlative rights of the owners in the common pool of oil. His further testimony was that if the east/west unit proposed by Stacy, consisting of the N xh of the SW Vi of Section 36 were approved, then it would be most unlikely that any driller would be interested in drilling on an east/west unit composed of the S V2 of the SW Vi of Section 36, because it would be too close to the fault to risk drilling a well on it.

With this uncontradicted evidence before it, the Board, in its Order, found:

“[I]t is necessary for the prevention of waste, to avoid the drilling of unnecessary wells and to protect the coequal and correlative rights of all owners in said lands to require such persons to integrate their interests in said unit and to develop said lands as a drilling unit ....
“The reformation and integration of said unit will promote conservation, prevent waste, prevent the drilling of unnecessary wells, and the coequal and correlative rights of all parties owning an interest in said proposed unit will be protected.”
The Board then ordered:
“[T]hat the aforesaid unit for the above described well be reformed to the 80 acre oil unit above described, and that all interests therein be integrated.”

The lower court was correct in finding that the Board’s order reforming the 640-acre gas drilling unit into an 80-acre north/south oil drilling unit was supported by substantial evidence. See Ohio Oil Co. v. Porter and Skelton, 225 Miss. 55, 82 So.2d 636 (1955).

However, the lower court was in error in finding that the Board’s order was void because the Board did not specifically find that the coequal and correlative rights of the owners in the pool would be protected. The fault that the lower court found with the Board’s order was that the order recited that the coequal and correlative rights of all parties owning an interest in said unit would be protected.

The exact finding of the Board was:

“The reformation and integration of said unit will promote conservation, prevent waste, prevent the drilling of unnecessary wells, and the coequal and correlative rights of all parties owning an interest in said proposed unit will be protected.”

The substance of the Board’s finding was that the coequal and correlative rights of the owners in the common pool of oil would be protected. This is in accord with the “Declaration of Policy” stated in MCA secr tion 53-1-1 (1972):

“It is hereby declared to be in the public interests to foster, encourage and promote the development, production and utilization of the natural resources of oil and gas in the State of Mississippi; and to protect the public and private interests against the evils of waste in the production and utilization of oil and gas, by prohibiting waste as herein defined; to safeguard, protect and enforce the coequal and correlative rights of owners in a common source or pool of oil and gas to the end that each such owner in a common pool or source of supply of oil and gas may obtain his just and equitable share of production therefrom; and to obtain, as soon as practicable, consistent with the prohibition of waste, the full development by progressive drilling of other wells in all producing pools of oil and gas or of all pools which may hereafter be brought into production of such, within the state, until such pool is fully defined.” (Emphasis added).

It would be promoting form over substance to find that the magic word “pool” had to be used, otherwise the order would be ipso facto void.

For these reasons, the order of the circuit court is reversed insofar and it ruled that the order of the Oil and Gas Board was void because it used the word “unit” rather than “pool” in one place in its order, but the order of the lower court is affirmed in all other respects.

AFFIRMED ON DIRECT APPEAL, REVERSED ON CROSS-APPEAL, AND ORDER OF THE OIL AND GAS BOARD REINSTATED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Ronnie Edward SMITH v. STATE of Mississippi.
    No. 52991.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Johnson & Mills, Jerry L. Mills, Clinton, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, wherein Ronnie Edward Smith was indicted, tried and convicted of the June 12, 1980, rape of the 21-year-old prosecutrix.

Smith was sentenced to a term of 30 years in the Mississippi Department of Corrections, with 5 years suspended.

Smith appeals, assigning as error:

The indictment in this case failed to adequately advise the Appellant of the nature and cause of the accusation against him with sufficient certainty, clarity and particularity as is required by Section 26 of the Mississippi Constitution of 1890.

The indictment is drawn in strict conformity with the statute, MCA section 97-3-65(2) (Supp. 1980). Only one act of rape is charged. The contention of Smith is that at the trial, the prosecutrix testified that she was raped twice by Smith, and that the indictment does not specify which act he is being charged with.

The record contains no objection to the indictment on any ground, nor was there any objection to the testimony as to two acts of rape.

In Salisbury v. State, 293 So.2d 434 (Miss. 1974), we said that only where an indictment fails to charge an offense may an objection thereto be made for the first time on appeal.

However, we will consider this assignment of error on the merits.

As the prosecutrix finished studying around 1:00 a.m. on June 12, 1980, and walked down the hall to the bathroom, she noticed Smith coming out of the bathroom toward her bedroom. She ran into her father’s room, screaming that someone was in the house, and as her father began getting up from his bed Smith entered his bedroom and ordered him to remain seated. Defendant, armed with a pistol, bound and gagged her father and ordered prosecutrix and her 4-year-old son into her bedroom.

Defendant then entered the bedroom and, after threatening the child, raped the prose-cutrix. He then got up and went to the other side of the house. He returned shortly thereafter and raped the prosecutrix again. The defendant fell asleep. Police were summoned. They arrested the defendant and seized the weapon. The prose-cutrix was examined around 5:00 a.m. at the University Medical Center. Examination revealed recent sexual intercourse.

Although defendant did not testify at his trial, he did admit when he was arrested that he remembered going to the residence of the prosecutrix, knocking on the door, and when he received no response he entered the house through an open window. He remembered kissing a woman, but did not remember anything further and did not remember having a pistol with him.

In Turnbow v. State, 454 P.2d 674 (Okl. Cr.1969), the Court of Criminal Appeals of Oklahoma rejected the contention that the trial court had erred in not requiring the state to elect between two acts of rape occurring on the same date, and held:

“In Syllabus 2 of Turnbow v. State, supra, we stated:
‘Evidence that the defendant had sexual relations with complaining witness twice in a short period of time, HELD to constitute only a single offense of rape.’ ”

454 P.2d at 675-76.

In Lee v. State, 242 Miss. 97, 134 So.2d 145 (1961), the prosecutrix was raped by two escaped inmates at her home. Holding the evidence of defendant’s accomplice’s act admissible, this Court said:

“Evidence which is material, relevant, and otherwise competent to prove the guilt of the accused in a case of this kind cannot be excluded because it may result in the disclosure of facts relating to the commission of other crimes. And this is especially true when the fact of the commission of such other crime, as in the case that we have here, forms a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts. [Citing authorities]. (Emphasis added).
“It is generally held that, ‘If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them, cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.’ [Citing authorities].” (Emphasis added). 242 Miss. at 108-09, 134 So.2d at 150-51.

In the case at bar, two acts of rape occurred on the one occasion that defendant was in the prosecutrix’s home. The time in between the two acts was not more than 10 or 15 minutes. In our opinion, both acts constituted only one single offense. Both constituted a part of the res gestae, were so intermixed and so connected that the two acts form an indivisible criminal transaction. Both were part of the chain of events occurring at the same time and place, and the evidence of one could not be given without evidence of the other. The testimony began with defendant’s unlawful entrance into the home of prosecutrix, proceeded with what happened thereafter, and ended with his arrest at prosecutrix’s home a short time later.

There is no merit in this assignment of error, and the conviction and sentence are affirmed.

AFFIRMED.

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


author: SMITH, Presiding Justice,

text:
    Rassberry MOORE v. STATE of Mississippi.
    No. 53002.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      G. Truett Roberts, Jr., Indianola, for appellant.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Rassberry Moore was convicted in the Circuit Court of Sunflower County of the crime of armed robbery and was sentenced to serve a term of 20 years imprisonment. He has appealed, assigning for reversal a violation of rights granted under Rule 4.07 of the Mississippi Uniform Criminal Rules of Circuit Court Practice. Rule 4.07 provides:

NOTICE OF ALIBI

Upon the written demand of the prosecuting attorney stating the time, date and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such other time as the court may direct, upon the prosecut-. ing attorney a written notice of his intention to offer a defense of alibi, which notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon which he intends to rely to establish such alibi.

Within 10 days thereafter, but in no event less than 10 days before the trial, unless the court otherwise directs, the prosecuting attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses.

If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the information previously furnished, the party shall promptly notify the other party or his attorney of the name and address of such additional witness.

Upon the failure of either to comply with the requirements of this rule, the court may use such sanctions as it deems proper, including:

(1) Granting a continuance;
(2) Limiting further discovery of the
party failing to comply;
(3) Finding the attorney failing to
comply in contempt; or
(4) Excluding the testimony of the undisclosed witness.

This rule shall not limit the right of the defendant to testify in his own behalf.

For good cause shown, the court may grant an exception to any of the requirements of this rule.

The record reflects that on January 12, 1981, more than thirty days before the trial, the State of Mississippi filed a “Request For Notice of Alibi” which was served upon the defense pursuant to Rule 4.07, supra. In its request for Notice of Alibi, the State gave notice that it would call as witnesses to establish Moore’s presence at the scene of the alleged robbery, Jim Lockett, Lucy Mae Green or Jeanette Wilburn.

On January 22, 1981, responding to the above, Moore filed his Notice of Alibi under Rule 4.07, in which he stated that he intended to prove an alibi in that, at the time of the alleged offense, he was at Jean’s Cafe, also known as the Golden Star, and that earlier he had been at the Club Chicago. In compliance with Rule 4.07, Moore listed the witnesses he expected to call to establish his defense of alibi.

Upon the trial of the case, Moore testified in his own behalf that at the time of the alleged robbery he was at Jean’s Cafe, where he had gone from the Club Chicago. In support of his testimony, he called Charles Pruitt, one of the witnesses he had listed in his Notice of Alibi, who testified that he and Moore were at the Club Chicago together during most of the day and later had gone to Jean’s Cafe together. Both Moore and Pruitt testified that they were together at Jean’s Cafe at the time the robbery is alleged to have occurred.

When both the State and the defense had rested their cases in chief, the district attorney, for the first time, announced that he was going to call Dorothy Jean Stokes in rebuttal, to rebut the testimony of Moore and Pruitt that they had been at Jean’s Cafe at the time of the alleged robbery. Dorothy Jean Stokes was the owner and proprietor of Jean’s Cafe. The name of this witness had not been disclosed by the State as one of the witnesses it expected to call to rebut the defense of alibi stated by Moore in his response to the State’s original notice under Rule 4.07.

Moore objected to allowing this witness to testify upon the ground that the witness’s name had not been disclosed as required by Rule 4.07 and she was, therefore, a surprise witness. The trial court overruled the objection and permitted the witness to testify, saying that the State “can’t disclose a witness they’re going to use in rebuttal until they know they’re going to use the witness.” The testimony of Dorothy Jean Stokes, the owner and proprietor of Jean’s Cafe, which was to the effect that she had not seen Moore there at the times in question, must be considered to have been prejudicial to Moore’s defense of alibi.

On appeal the State, in support of the action of the trial judge, cites Thomas v. State, 377 So.2d 593, 595 (Miss.1979), a case in which this Court dealt with Rule 4.06. The State concedes that Rule 4.06 is not the same as Rule 4.07 and that Rule 4.06 is not designed to cover a situation such as that reflected by the present record. Nor is Thomas a case in which the defense of alibi was involved. Rule 4.06 provides to a defendant a method of discovery from the prosecution the names and addresses of witnesses to be offered in chief (as this Court emphasized in its opinion) by the prosecution. There is no provision in it for disclosure of rebuttal witnesses as in Rule 4.07. In Thomas, this Court cited United States v. Windham, 489 F.2d 1389 (5th Cir. 1974), wherein the Federal Court said: “That the government’s witness list, gratuitously furnished the appellant without any court order requiring it, did not contain the names of the two rebuttal witnesses is not surprising. Rebuttal witnesses are a recognized exception to all witness disclosure requirements. Prejudice may not be successfully asserted in this connection; [citing authorities].”

In Thomas, however, this Court specifically pointed out that when Newsome (the rebuttal witness whose name had not appeared in the State’s discovery under Rule 4.06) was offered in rebuttal, there was no objection to his testifying. This Court quoted from Rule 4.06 the following portion of that rule.

The prosecution shall disclose to each defendant or his attorney, upon request and without further court order, the following:
(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial; [The Court’s emphasis in Thomas opinion]. [377 So.2d at 595].

There can be no doubt that in Thomas this Court was not confronted with any question which had arisen under Rule 4.07 which made it the duty of the prosecution, in a case where an alibi is to be offered as a defense, to disclose to a defendant, under the procedure stated in the rule, the names and addresses of all witnesses upon whom the State expects to rely to establish a defendant’s presence at the scene of an alleged offense and “any other witness to be relied on to rebut testimony of any of the defendant’s alibi witnesses.” The action of the trial court in overruling the objection to the testimony of Dorothy Jean Stokes to the effect that Moore had not been in her cafe at the alleged time of the robbery, was clearly erroneous and violated rights granted under Rule 4.07. Both the State and the defense had concluded their cases in chief, there was no time or opportunity for an investigation of the witness so that her testimony might be attacked, and the court should have sustained the objection.

Appellant cites the decision of the United States Supreme Court, Williams v. State of Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), approving the Florida Notice of Alibi Rule, which is substantially similar in many respects to Rule 4.07. In this case the United States Supreme Court said:

The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as “due process” is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence. [Footnotes omitted]. [339 U.S. at 82, 90 S.Ct. at 1896, 26 L.Ed.2d at 450].

In Wardius v. State of Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), the Oregon Notice of Alibi rule was brought in question because of the defendant’s contention that permitting the discovery by the State of his alibi witnesses without a provision for reciprocal discovery of rebuttal witnesses of the State amounted to a denial of due process and a fair trial. The United States Supreme Court in holding that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants, stated:

The Williams [v. State of Florida, supra,] Court was therefore careful to note that “Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant.” 399 U.S. at 81, 90 S.Ct. at 1895 (footnote omitted), 26 L.Ed.2d 446. . . .
. . . The State may not insist that trials be run as a “search for truth” so far as defense witnesses are concerned, while maintaining “poker game” secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State. [Footnotes omitted]. [412 U.S. at 474-476, 93 S.Ct. at 2212-2213, 37 L.Ed.2d at 87-88].

Moore points out that the testimony of Dorothy Jean Stokes, who was omitted from the list furnished by the State to him and brought in without notice in rebuttal at the conclusion of the case, was in complete contradiction of his own testimony and that of his witness, Pruitt, that they had been in her restaurant at the relevant time. Moore having given the required notice that he expected to prove the defense of alibi and that he was in the cafe owned and operated by this witness, her testimony went to his whole defense. It is not suggested that the existence of this witness or her presence at her cafe at the relevant time was something only discovered by the State after both the State and defense had rested. No excuse for this violation of Rule 4.07 by the State was shown.

If Rule 4.07 is to be given effect, in cases where a defendant has been required by the State to disclose that his defense will be an alibi, together with a statement of where he will claim to have been, and by whom he expects to establish the fact, good faith compliance on the part of the State with the requirements of Rule 4.07 is necessary if an accused is to be accorded due process and a fair trial. The decision in this case is not intended to exclude the possibility that there may be in some cases circumstances which will justify or excuse failure to disclose the name of a rebuttal witness. No such circumstances are shown to have existed in the present case.

Finally, we find no merit in Moore’s challenge to the sufficiency of the evidence to support a conviction. However, the trial court’s error in allowing the witness, Stokes, to testify under the circumstances in this case, require the conviction be reversed and the case remanded for a new trial.

REVERSED AND REMANDED.

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


author: PATTERSON, Chief Justice, BROOM, Justice,

text:
    Phillip W. BOUGON v. STATE of Mississippi.
    No. 52772.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Richard E. Stratton, III, Brookhaven, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of Lincoln County, Phillip W. Bougon, a sixteen year old male, pleaded guilty to armed robbery and was convicted and sentenced to serve a term of fourteen years in the Mississippi Department of Corrections. Bougon sought transfer of jurisdiction to the Youth Court of Lincoln County; but after a full hearing, the trial court denied the motion to transfer. Also, Bougon’s request to change his plea to not guilty was overruled.

From this conviction and sentence, Boug-on appeals, assigning as errors that the lower court erred in failing to transfer the case to the Youth Court which constituted an abuse of discretion, in continuing to assert jurisdiction over Bougon, and in refusing to permit a change of plea from guilty to not guilty.

On June 4, 1980, Phillip W. Bougon, accompanied by a married woman, with whom he had spent several nights, and another teenage boy, robbed at gunpoint the Cracker Barrel Grocery Store of $714.43, placing Mildred and Billy Smith in fear of immediate injury. At the time of the robbery, Bougon had taken his stepfather’s car without his permission.

At the transfer hearing, Bougon testified he was born on August 7, 1964, and had completed the tenth grade at Magee High School. He had no prior felony or misdemeanor convictions, nor had he ever been arrested or charged with any crimes. Bougon, at the time of trial, was five feet seven inches tall and weighed 137 pounds. Prior to the robbery, he was residing with his mother and uncle, James A. Hinton.

Rev. J. L. Layton, Baptist minister at Athens for seven years, was Bougon’s minister and baptized him. In fact, Bougon acted as a youth pastor, teaching one of the Sunday School classes. He, along with other youths of the church, would visit Rev. Layton’s house about once every two weeks. In the minister’s opinion, he thought it would be in the best interest of Bougon to be tried in the Youth Court because, with the exception of an incident with a few cans of beer, he knew of no other bad habits or characteristics attributable to Bougon.

Doyle Ethridge, a vocational technical teacher who taught Bougon small engine mechanics, described Bougon as a very normal bright student with a good sense of humor, very respectful and enjoyable to be around. He never heard Bougon curse or display any bad habits. In his opinion, Bougon should be transferred to the Youth Court.

Gene McGahey, a planner at the State Department of Corrections with a BS degree in social science and a master’s degree in guidance, placed the total number of inmates at 2,343. He testified the minors and their locations were as follows:

Number Satellite County Facility Jail State Age Penitentiary
20 0 6 17 14
5 1 1 16 3
1 1 15
1 1 14

There is an adult basic educational program at Parchman and a vocational technical school but no high school educational facilities. McGahey also stated that Parch-man lacked adequate facilities to house or to provide any beneficial, rehabilitative experiences for adolescents and would be ad-vérse to a sixteen year old’s best interests. At the time of the hearing, there were four 16 year olds and three 17 year olds in high school equivalency programs at Parchman.

In McGahey’s professional opinion, youth offenders up to 18 years lack the emotional stability to cope with the adult population in Parchman; moreover, they are more susceptible to influences by hardened criminals with whom they are in direct contact in the training or specialized programs. Mental health treatment and counseling are not generally available; however, those needing psychiatric assistance are transported daily to the University Medical Center in Jackson. Although there is a first offenders camp to age 20, there is no special housing for sixteen year olds. In addition, there have been twenty reported sex crimes committed at Parchman in the last 24 months, from September 1978 to September 1980, with probably more sex crimes unreported because of social stigma or fear of repercussions.

Dr. Beth Wildman, who has a Ph.D in clinical psychology, interviewed Bougon and his brother and described Bougon as follows:

I see Phillip as a fairly average 16 year old adolescent with many of the impulsi-bilities of children that age. He seemed to be a youth who was becoming actively involved in good things at school, after school jobs, after school activities. He enjoys hunting and fishing; lots of other things that other youth his age do. He seems basically, on what I found out from his brother, not to have been as well supervised possibly as he could have been and also quite angry and a little rebellious at some things, responsibility placed upon him by his mother.

In her opinion, both Bougon and the State’s best interests would be served by transferring jurisdiction to the Youth Court, because Bougon is in the stage between adolescence and adulthood thus making him strongly susceptible to the influences of others. She testified Bougon was strongly influenced by the teenage boy with him the day of the robbery as well as the married woman whom he felt tremendous pressure to support.

She found no severe emotional instability in Bougon for his age. She was involved with the May case and contrasted Bougon and May as being completely different in their emotional stability or competence, although she did not elaborate on the differences. If Bougon’s case were transferred to Youth Court, she would recommend he be ordered to continue in the school program with an after-school job and placement in a stable environment such as with his older brother and sister-in-law.

Bougon also petitioned in the alternative to be sentenced by the circuit court under MCA § 43-21-159(3) which provides that in lieu of other statutory punishment, the trial judge may commit the child to a state institution for delinquents, or to a county jail for a term not in excess of one year, or to suspend the sentence and release the child on probation. Also Bougon sought to change his plea of guilty to a plea of not guilty.

The circuit judge in ruling on these matters, stated Bougon had entered the guilty plea without any reservation whatsoever and it would stand. Concerning the petition to sentence Bougon under § 43-21-159(3), the trial judge ruled that because of the seriousness of the offense of armed robbery, it would not be in the best interest of public welfare to limit its sentence because an institution for delinquents could, and probably would, based on past experiences, promptly release defendant within a few months. Further, it was ruled if the Department of Corrections has the authority to transfer Bougon to an institution for delinquents during his minority, then this would be within the prerogative of the Department of Corrections.

Appellant assigns error in the trial court’s refusal to transfer jurisdiction to the Youth Court. In our opinion this is not meritorious because the circuit court had exclusive jurisdiction to hear the case as provided by MCA § 43-23-29 (1972) which states:

§ 43-23-29. Transfer of felony cases to other courts; jurisdiction of certain cases given to circuit court.
If a child thirteen years of age or older is charged with an offense which would be a felony if committed by an adult, the court, after full investigation, may, in its discretion, retain jurisdiction and proceed with the case as a delinquency case, or certify such child for proper criminal proceedings to any court which would have trial jurisdiction of such an offense if committed by an adult, and may fix the amount of bail, except that the circuit court shall have exclusive jurisdiction of such child if he be charged with any crime which, upon conviction, is punishable by life imprisonment or death. (Emphasis added).

Also Bougon was charged with the crime of armed robbery under MCA § 97-3 — 79 (1972), which provides for life imprisonment or a term of not less than three years. Since it is a crime punishable by life imprisonment exclusive jurisdiction was within the circuit court and it was not within the discretion of that court to determine whether the case should be transferred to the Youth Court or not. Upon motion to transfer made by Bougon, the trial court conducted a full hearing and determined it would not be in the best interests of the child or of justice to be transferred to the Youth Court. The court did not err in this regard in our opinion.

In Carter v. State, 334 So.2d 376 (1976), a fifteen year old defendant was convicted of armed robbery as an adult without certification from the Youth Court. The defendant was charged with the crime of armed robbery under § 97-3-79. In affirming the conviction, we interpreted § 43-21-31 (expressly repealed from and after July, 1979) to mean the circuit court has exclusive jurisdiction of offenses punishable by life imprisonment or by death. We explained § 43-21-31 as follows:

We recognize the general rule of construction that statutory exceptions are to be strictly or narrowly construed in favor of the accused. Given a strict construction, the statute which confers exclusive jurisdiction upon circuit court, § 43-21-31 is of no avail to appellant here because the statute is clearly applicable to offenses punishable by “life imprisonment or death.” The statute does not say and cannot logically be construed to mean that the punishment must be “by both life imprisonment and death” (emphasis added), as argued in appellant’s brief. It is to be noted that language of the statute does not limit its application to a “capital offense” as used in Section Twenty-nine of the Mississippi Constitution of 1890. Indeed the statute now under consideration does not at any place contain any phrase such as “capital case” or “capital offense.” By clear and unambiguous language, § 43-21-31 simply confers upon circuit courts exclusive jurisdiction if the crime charged is “punishable by life imprisonment,” or “death.” 334 So.2d at 377.

We think this interpretation of § 43-21-31, now repealed, would also apply to the present § 43-23-29.

We find the second assignment of error that the trial court erred in continuing to assert jurisdiction over Bougon after the adjudicatory hearing and to sentence him to be redundant of the first assignment of error and thus will not be separately addressed.

We are of the further opinion the trial court did not abuse its discretion in refusing to permit Bougon to change his plea from guilty to not guilty after the court retained jurisdiction to hear the case. However, from the record, we think the trial court was probably under the misapprehension that MCA §§ 97-3 — 79 (Supp. 1981) and 47-7-3(d) (Supp.1981), read together, mandated a sentence of at least ten years in the state penitentiary, absent a jury verdict of life imprisonment. Those statutes provide:

§ 97-3-79. Robbery — use of deadly weapon.
Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years. § 47-7-3. Parole of prisoners — conditions.
Every prisoner who has been or may hereafter be convicted of any offense against the State of Mississippi and is confined in the execution of a judgment of such conviction in the Mississippi State Penitentiary for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the penitentiary, and who has served not less than one-third (Va) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided, except that:
(d) No person shall be eligible for parole who shall on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person. If such person is sentenced to a term or terms of ten (10) years or less, then such person shall not be eligible for parole.

In the case of child offenders, the trial court may sentence to a satellite facility in lieu of the statutory punishment. This amended statute MCA § 43-21-159(3) provides:

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

We are of the opinion a clarification of the sentencing is needed because we are unable to discern if the trial court considered the statutory alternative for sentencing minor offenders under the provisions of Section 43-21-159(3). See, May, supra. The record reflects the trial court denied a transfer of the cause to the Youth Court because the court did not think it would be “in the best interest of justice,” rather than denying it because of exclusive jurisdiction of this crime being in the circuit court. In sentencing Bougon to fourteen years in the penitentiary, ten of which are required to be served without parole or suspension, the court expressed the hope that the Department of Corrections would place the youth in a situation where he could obtain schooling and training and that this training would continue at least through the high school level. However, the uncontradicted evidence reflects the facilities for such training are virtually nonexistent at the Department of Corrections and that department had no authority to transfer the youth to such facilities because such authority was vested in the trial judge by MCA § 43-21 — 159(3), supra. We, therefore, are of the opinion the cause should be affirmed and remanded for clarification of the sentencing.

AFFIRMED AND REMANDED FOR CLARIFICATION OF SENTENCING.

SUGG, WALKER, LEE, BOWLING and HAWKINS, JJ., concur.

SMITH and ROBERTSON, P.JJ., and BROOM, J., dissent.

BROOM, Justice,

dissenting:

Quite correctly the majority opinion affirms the conviction appealed from, but, as I view it, remand “for clarification of the sentencing” is inappropriate.

May v. State, 398 So.2d 1331 (Miss.1981) does not require or justify remand of the present case. May focused upon Mississippi Code Annotated § 43-21-159(3) (Supp.1980) which provides that a child may be committed by the trial judge to a state institution for delinquents, or to a jail for not over one year, or released on probation. We reversed the lower court in May, and stated:

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

In the present case, it appears clear to me that the trial judge seriously considered “alternatives enumerated in the statute” and remand should not be ordered. In overruling Bougon’s motion to withdraw his plea of guilty and enter a not guilty plea, the court stated:

Insofar as the Petition filed under the second provision of Section 43-21 — 159(3), the Court, because of the nature of the offense and the facts as indicated, does not believe it would be in the best interest of the public welfare that the Court be limited in its sentence to the committing of the child to an institution for delinquents because the authorities of that institution could, and in all probability as past experience shows, would promptly release the defendant within a very few months, and the Court does not feel that because of the nature of the offense, that the Court should be limited to committing the defendant to the county jail for a term not in excess of one year, and because of the nature of the offense, the Court does not feel it should suspend the sentence and release the defendant upon probation, and so, therefore, the Petition is overruled or denied, and the defendant will be sentenced to the custody of the Department of Corrections of the State of Mississippi, and if the Department of Corrections of the State of Mississippi sees fit as to jurisdiction to transfer this child to any institution within the state established for delinquents during the time of the minority of this defendant, that will be within the prerogative of the Department of Corrections. That is to say, if the Department of Corrections has the authority and will transfer the custody of the child, or defendant, to the training school establishment or any other state institution within its jurisdiction, that will be up to the Department of Corrections.

In spite of the above language which the trial court used in making its ruling, the majority opinion states “a clarification of the sentencing is needed because we are unable to discern if the trial court considered the statutory alternative for sentencing minor offenders under the provisions of Section 43-21-159(3)”. It is clear that the trial court in making its ruling did in fact consider the “statutory alternative for sentencing minor offenders” under § 43-21-159(3); indeed the sentencing judge (quoted above) shows that he considered “committing the child to an institution for delinquents” but did not do so “in the best interest of the public welfare. . . . ” The majority opinion correctly notes that according to the evidence the “facilities for such training are virtually non-existent at the Department of Corrections.... While we may (as did the trial judge below) lament the lack of such facilities, the matter of making such facilities available is a legislative problem which remand for “clarification of the sentencing” cannot solve.

I share with the majority this court’s concern with the nationwide problem of what to do with young citizens who violate criminal laws. It must be noted that in the present case, after considering the various statutory alternatives open to him, the trial judge meted out a sentence well within perimeters allowed by applicable statutes. What magical words must trial judges utter when sentencing in a case such as the present case where the trial judge specifically referred to § 43-21-159(3)? In the past, we have been reluctant to intrude into or in any sense usurp the functions of the sentencing judges. Here we are remanding a cause tried by an experienced and capable circuit judge who previously had years of experience as a district attorney. Not only should we presume that trial judges have knowledge of the law, but in the present case the record of language used by the trial judge demonstrates beyond any doubt that he not only knew the applicable law— he meticulously applied it. Yet the concluding part of the majority opinion orders remand “for clarification of the sentencing.” If remand is to be ordered, I would urge that we set forth language specifically laying down guide lines as to how trial judges are to comply with sentencing requirements.

Scrutiny of the present record reveals that the trial judge heard testimony in great detail concerning defendant Bougon’s age, gender, personality, scholastic record, church life, and many other factors. Then he judiciously meted out a penalty much less than the maximum allowable for a very serious crime: armed robbery. It matters not that we (appellate judges) might have ordered some other sentence, either more severe or lenient, to conclude the matter.

My studied opinion is that the judge below demonstrated and made the record show that he was mindful of all applicable statutes and that he, in accord with May, supra, considered “seriously those alternatives enumerated in the statute and .. . the presence or absence of facilities for care of a minor offender.. .. ” Accordingly I dissent to the majority opinion insofar as it orders the cause “remanded for clarification of sentencing.”

SMITH and ROBERTSON, P.JJ, join in this dissent.

       May v. State, 398 So.2d 1331 (Miss.1981).


author: PATTERSON, Chief Justice,

text:
    Mary DOUGLAS v. The GREAT ATLANTIC & PACIFIC TEA COMPANY.
    No. 52782.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Gaston H. Hewes, Jr., Gulfport, for appellant.
    Bryant & Stennis, Grier J. Gregory, David B. Strain, Gulfport, for appellee.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of the First Judicial District of Harrison County, the jury returned a verdict for A & P grocery store, the defendant, in a slip and fall negligence action brought by appellant, Mary Douglas, for damages.

Douglas appeals from the verdict, assigning several errors, combined herein as two.

I. The trial court erroneously refused plaintiff’s Instructions 1, 2, 3, 7, 9, and 13.
II. The jury verdict was not supported by the evidence, being against the overwhelming weight of the credible evidence, evincing bias, passion, and prejudice on the part of the jury; and the trial court erred in overruling Douglas’ motion for judgment notwithstanding the verdict, or, in the alternative, a new trial.

On July 3, 1979, Mary Douglas went to the A & P in Gulfport to buy two weeks supply of groceries. It being a holiday eve, the store was quite crowded. She had one more aisle to go and was standing near the frozen food case with a basket full of groceries when she slipped and fell on something wet. When she attempted to get up, she experienced a sharp, burning pain.

Curtis Fairley, the manager of the A & P, saw Douglas at about 1:00 p. m. immediately after the accident and observed about a gallon or so of water on the floor adjacent to the frozen food case. He did not know how long the water had been there, but was sure it came from the frozen food case. He prepared an accident report on July 3, describing the defective condition as water on the floor caused by the “frozen food case leaking water on the floor.” To Fairley’s personal knowledge, the floor had last been cleaned six or seven hours before the accident.

Fairley further testified he walks the aisles about fifteen or twenty times each day, and on the morning of the accident, he walked through the store about 6 to 8 times. He walked aisle nine, site of the accident, about five times and did not notice any water in the aisle. He last walked aisle nine at 11:30 a. m., an hour and a half before Douglas slipped and fell. Prior to July 3, the frozen food case had not leaked.

The porter of the A & P, Bill Hickman, whose duties include sweeping and scrubbing the aisles on the night shift testified he spent six to eight hours on the night of July 2 and the early hours of July 3 sweeping and scrubbing the floors. He observed no water pooling in aisle nine while working and had never seen any in the past. He also testified that water occasionally comes off the frozen food case and collects on the floor, but that it is wiped dry as soon as observed. He also stated the floor should ideally be swept every three hours. Hickman and Fairley both admitted no sweeper’s log was kept because of laziness or indifference.

Bobby Beeson, in charge of stocking the frozen food case, testified the case was stocked from 6:30 a. m. to 12:30 p. m. on July 3. The last time he went down aisle nine was 12:10 p. m. Beeson noticed no water pooling in the aisle nor was there a problem with leakage from the frozen food case.

The evidence on damages, not the primary issue on appeal showed Mary Douglas sustained back injuries from her fall in the A & P which required medical care, hospitalization, and absenteeism from work.

This brings us to appellant’s assignment of error that Instructions P-1 and P-2, peremptory instructions, were erroneously refused by the trial court. We think, the trial court properly refused these based on the conflicting evidence of negligence. See Butler v. Chrestman, 264 So.2d 812 (Miss.1972). Also much of the evidence is circumstantial and such a case should rarely be taken from the jury. Davis v. Flippen, 260 So.2d 847 (Miss.1972).

We are also of. the opinion Instructions P-3, P-7, P-9, and P-13 were correctly refused. These instructions are quoted herein:

JURY INSTRUCTION NO. P-3
The Court instructs the Jury that if you believe by a preponderance of the evidence in this case that the wet floor in the aisle of the A & P on July 3, 1979, created a hazardous condition, and that this condition was created by the Defendant, The Great Atlantic and Pacific Tea Company, or under its authority and if you further believe by a preponderance of the evidence that said condition was the proximate cause of the injuries and damages sustained by the Plaintiff, then you must return a verdict for the Plaintiff, Mary Douglas.
JURY INSTRUCTION NO. P-7
The Court instructs the Jury that if you believe from a preponderance of the evidence in this case that the Defendant, by and through its employees; negligently allowed water to accumulate in the aisle where the Plaintiff was shopping and negligently failed to remove the same from the aisle, and if you further find from a preponderance of the evidence that the water as it was situated in the aisle constituted a hazard to persons using the aisle when shopping and that the Defendant negligently failed to use reasonable care in keeping the aisle dry so that a person exercising reasonable care therein could avoid injury to themselves, and if you further believe from a preponderance of the evidence that the negligence, if any, of the Defendant approximately caused or contributed to the injuries of the Plaintiff, Mary Douglas, then it is the sworn duty of the Jury to return a verdict for the Plaintiff.
JURY INSTRUCTION NO. P-9
The Court instructs the Jury that the Defendant in this case owed a duty to the Plaintiff to exercise reasonable care to see that the portions of the store which the Plaintiff may be expected to use are reasonably safe.
The Court further instructs the Jury that if you believe from a preponderance of the evidence that the wet floor which caused injury to the Plaintiff constituted a hazard to persons using the aisle while shopping, and that said floor condition was created by a negligent act or omission by the Defendant, or one of its employees, or under the Defendant’s authority, and if you further believe that such negligence, if any, proximately caused or contributed to the injuries of the Plaintiff, Mary Douglas, then it is your sworn duty to return a verdict for the Plaintiff, regardless of whether the Defendant had knowledge of the fact that the floor was wet.
JURY INSTRUCTION NO. P-13
The Court instructs the Jury that if you believe from a preponderance of the evidence in this case that the Defendant, The Great Atlantic and Pacific Tea Company, through its agents or employees negligently allowed the frozen food counter on aisle nine of its supermarket to leak water onto the aisle prior to the Plaintiff’s fall and if you further believe from a preponderance of the evidence in this case that this created an unreasonable hazard to customers walking in said aisle and that the Plaintiff slipped on the water and fell and suffered injuries, then it is your sworn duty to find for the Plaintiff and against the Defendant, The Great Atlantic and Pacific Tea Company.

The primary reason these jury instructions were refused, and properly so, in our opinion, was the failure to require plaintiff to prove the proprietor had actual or constructive notice of the wet condition. The applicable rules concerning proof of notice are stated in Winn Dixie v. Hughes, 247 Miss. 575, 584, 156 So.2d 734, 736 (1963) as follows:

With respect to the necessity of evidence concerning notice of the dangerous ■ floor condition, “there are two rules of fundamental significance. The first of these is that where the floor condition is one which is traceable to the proprietor’s own act — that is, a condition created by him or under his authority — or is a condition in connection with which the proprietor is shown to have taken action, no proof of notice is necessary.
“Thus, it has been said that matters as to notice, including questions as to the length of time the dangerous condition existed are eliminated where it appears that the condition was created by defendant or persons for whose conduct he is responsible.” Anno., 61 A.L.R.2d at 24.
The second rule, in contrast with that applicable to a floor condition resulting from the act of the proprietor, is this: “* * * where it appears that a floor in a store or similar place of business has been made dangerous by litter or debris present thereon, and that the presence of the litter or debris is traceable to persons for whom the proprietor is not responsible, proof that the proprietor was negligent in relation to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that, in the exercise of reasonable care, he should have known of it.” Anno., 61 A.L.R.2d at 26; 2 A.L.I., Rest, of Torts, § 343; 38 Am.Jur. Negligence, § 136; 65 C.J.S. Negligence §§ 45, 51.

Here there was not a scintilla of evidence a third party created the wet hazardous condition; moreover, there was no proof the proprietor created the wet condition. Thus it was the plaintiff’s burden to prove either actual or constructive notice on the part of the proprietor of the dangerous wet condition of the floor in front of the frozen food case. In Helveston v. Gibson Products Company of Hattiesburg, Inc., 192 So.2d 389 (Miss.1966), we affirmed a jury verdict for defendant wherein plaintiff slipped and fell on a puddle of liquid in Gibson’s. There we held proof of actual or constructive notice is required where there is no proof the dangerous condition is the result of an affirmative act of the store proprietor or any of his employees. Here, appellant also failed to prove the wet hazardous condition was a result of an affirmative act of the proprietor or his employees so plaintiff had the burden of proving notice; thus the jury must be properly instructed as to notice.

It is possible to reasonably infer from circumstantial evidence presented at trial that the water originated from the adjacent frozen food case; however, even if this be so, proof of the water’s presence on the floor for a sufficient amount of time to give reasonable notice to the proprietor is required. This the appellant did not prove. A similar case to the present is Hill v. Allied Supermarkets, Inc., 42 N.C.App. 442, 257 S.E.2d 68 (1979) where plaintiff slipped and fell on some water next to a vegetable bin in a supermarket. There was no evidence to indicate the source of the water or how long the water had been there, and plaintiff’s testimony that she guessed the water came from the vegetable bin was viewed by the North Carolina Court as speculation and conjecture. In affirming the directed verdict for the proprietor, that court reasoned as follows:

Moreover, even if the speculations of the plaintiff and her witness identifying the bin as the source of the water should turn out to be correct, there is no evidence as to how long the water had been there nor was there any evidence to show that the defendant knew or in the exercise of reasonable inspection should have known of its presence in time to have removed it before plaintiff stepped into it and fell. There was no evidence that the freezing components of the vegetable bin were malfunctioning in any way or that, if they were, defendant knew or in the exercise of reasonable inspection should have known that this was the case. The testimony of plaintiff’s niece that the water “maybe dripped” and that “[w]hen something is defrosting, the more it defrosts or runs the more water,” obviously represents no more than speculation on her part. Such conjectures as to possibilities furnish no adequate basis for a jury finding that water in fact did drip from the vegetable bin as result of defrosting and that the dripping water did accumulate on the floor over a long enough period of time to give defendant notice of its presence. Upon all of the evidence, the jury could do no more than speculate about the water’s source and about the length of time it had been on the floor. 257 S.E.2d at 71.

While it is quite true the frozen food case was under the superior control of the A & P, we recognize the well settled rule which disallows the application of the doctrine of res ipsa loquitur to slip and fall cases. Daniels v. Morgan & Lindsay, Inc., 198 So.2d 579 (Miss.1967); F. W. Woolworth Co. v. Stokes, 191 So.2d 411 (Miss.1966); Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916 (Miss.1966).

Turning to appellant’s assertion the jury verdict is against the weight of the credible evidence so as to evince passion and prejudice, we again are of the opinion this is without merit. We exercise with the utmost care the power to set aside a jury verdict and grant a new trial. Williams v. Hood, 237 Miss. 355, 114 So.2d 854 (1959). Here the appellant failed to sustain her burden of proving actual or constructive notice so the jury verdict, we find, is in accord with the evidence.

AFFIRMED.

SMITH, P. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE and HAWKINS, JJ., concur.

BOWLING, J., takes no part.


text:
    CITY OF OXFORD v. Maurice INMAN, et al.
    No. 52881.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      McCormick & Morris, Jack McCormick, Oxford, for appellant.
    Jeptha C. Clemens, E. Clifton Hodge, Jr., University, for appellees.
    Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.
   PATTERSON, Chief Justice,

for the Court:

The City of Oxford and the Anchorage Co., Inc., appeal from a judgment of the Circuit Court of Lafayette County wherein a rezoning ordinance adopted by the City of Oxford was reversed and rendered null and void for lack of sufficient evidence to justify reclassification. Both the City and Anchorage appeal, contending the trial court committed reversible error in holding that the successful applicants for rezoning failed to sustain their burden of proof; in declaring the city ordinance null and void on the grounds the rezoning was not supported by clear and convincing evidence; and in failing to dismiss the bill of exceptions because it was untimely filed. Appellants also assert the decision below should be reversed because it is a groundless usurpation of the legislative function of the governing body of a municipal corporation; and the decision is arbitrary, capricious and manifestly contrary to reason and the great weight of the evidence.

Anchorage sought to rezone 8.33 acres in the City of Oxford from A, agricultural, to R-C, multi-family residential. The property is located on the west side of Molly Barr Road between Kendall Ditch on the south and the balance of Anchorage property on the south. At the rezoning hearing, Ben Smith, Director of Planning and Development for the City of Oxford, described the changes which allegedly justified the rezoning. These changes included the rebuilding and extension of the Molly Barr Road in 1972 or 1973, the building of a low-rent housing project known as C. B. Webb Apartments, the building of a 25,000 to 30,000 foot recreational center at the junction of Price Street and Molly Barr Road, and construction of a major street across the subject property. Protestants of the rezoning live in the Garner Heights Subdivision which is adjacent to the 8.33 acres.

Concerning the need for multi-family housing on a specific 8.33 acres sought to be rezoned, Smith stated:

I have no information relating to any specific site as to whether it might or might not be used or if there is a need for a development on any specific site. Every year in our program we do a survey, gathering information regarding housing needs within the City.
I believe our last survey done sometime last year does show some need for additional multi-family housing, but I couldn’t give you the figures. It’s not related to any specific site or any specific type of housing. It would generally be for the whole City, not one area.

He also stated there was some land zoned R-C in the city that is vacant.

Other observations he made about the changed character of the area were as follows:

Yes, I will say the changes of one-lane gravel road down along the property to a 48-foot curb and gutter stripping would be probably the most significant change that actually involved this actual property. As far as the right-of-way of that road is concerned. Of course, the adjoining property across the street, the C. B. Webb Apartments, but immediately adjacent to and within 60 feet, 80 feet, wherever the right-of-way is, would be a change in the character of the neighborhood. This property for years down here has been a farm. It was a farm. I don’t know whether they raised cotton or what, for years laid vacant.
We have seen municiple [sic] improvements, several million dollars spent in this area immediately adjacent to the property-

Immediately following the hearing on May 6,1980, the Mayor and Board of Aider-men voted to rezone the 8.33 acres from A to R-C. Thereafter on June 3, 1980, City Ordinance No. 1980 — 2 was adopted. Following this adoption on June 13, 1980, Maurice Inman and other protestants filed a bill of exceptions pursuant to MCA § 11-51-75 (1972). Anchorage moved to dismiss the bill of exceptions for failure to appeal within the ten day time period prescribed by the foregoing statute.

Appellants contend there was ample evidence to justify rezoning from agricultural to multi-family residential and further maintain the clear and convincing burden of proof generally applied in rezoning cases does not apply to the present case because the agricultural designation was not intended to be permanent; therefore, the presumption in favor of the original zoning should not be applicable. Assuming, but not deciding, this argument to be valid, we are of the opinion the trial court was correct in holding the evidence insufficient to warrant rezoning because appellants did not prove changed conditions in the area and public need for the rezoning on the specific 8.33 acres sought to be rezoned. In Cloverleaf Mall Ltd. v. Conerly, 387 So.2d 736, 740 (Miss.1980), we stated the general requirements for rezoning to be:

Before reviewing the evidence in this case, we restate the requirements set forth in our cases which must be met by one seeking rezoning of property. The courts presume that comprehensive zoning ordinances adopted by municipal authorities are well planned and designed to be permanent. Before property is reclassified from one zone to another, there must be proof either, (1) that there was a mistake in the original zoning or, (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. [Citations omitted].
Furthermore, an applicant seeking rezoning must prove by clear and convincing evidence either (1) or (2) above. Sullivan v. City of Bay St. Louis, 375 So.2d 1200 (Miss.1979); Underwood v. City of Jackson, 300 So.2d 442 (Miss.1974); Hinds County Board of Supervisors v. Covington, 285 So.2d 143 (Miss.1973).
It is also well established that the use of property in accordance with an original zoning plan is not a material change of conditions which authorizes rezoning. Jitney Jungle, Inc. v. City of Brookhaven, 311 So.2d 652 (Miss.1975); Martinson v. City of Jackson, 215 So.2d 414 (Miss.1968). [Emphasis added].

We are of the opinion appellants failed to prove by clear and convincing evidence or even by a lesser standard that the conditions had materially changed to warrant rezoning. We think the building of the C. B. Webb low-rent housing and recreational facility as well as road expansion were changes in accordance with the original zoning plan. Also there was no concrete evidence of public need for housing on the 8.33 acres sought to be rezoned, but testimony there was generally a public need for multifamily dwellings in the City of Oxford. We are of the opinion this is too vague to warrant a change in zoning. Therefore, the trial court did not err in this regard.

We are further of the opinion the lower court did not usurp the municipality’s legislative functions in reversing the City’s rezoning ordinance. It is clearly within the judicial discretion on review to reverse a rezoning ordinance adopted on insufficient proof. Here, we believe the City of Oxford’s adoption of the rezoning ordinance was based upon less than clear and convincing evidence. In Sullivan v. City of Bay St. Louis, 375 So.2d 1200, 1201 (Miss.1979), wherein we reversed the lower court’s af-firmance of a rezoning order because of insufficient evidence, we stated as follows:

The burden of proof was upon appel-lees to show that the character of the neighborhood had changed to such an extent that it justified rezoning and that there was a public need for rezoning the property. Unless the evidence is clear and convincing as to those requirements, the action of a rezoning board has been held to be arbitrary, capricious and discriminatory. [Citations omitted].

We also observed in Sullivan, supra at 1202, that a reviewing court “will not disturb a finding of the City that conditions have changed so as to warrant rezoning if the question is fairly debatable.” We are of the opinion the question was not fairly debatable in this case; in fact, very little evidence was presented to show a material change of conditions and public need. Thus we think the lower court acted properly in its review and did not usurp the City of Oxford’s legislative function.

Turning to the final assignment of error, appellants assert the protestants’ bill of exceptions was not timely filed and should have been dismissed by the lower court. The applicable statute, MCA § 11-51 — 75 (1972) provides in pertinent part the following:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities....

Appellants submit the ten day appeal period commenced running on May 6, 1980, the date the Mayor and Board of Aldermen voted orally to reclassify the property, whereas it is appellees’ position the ten day period began running on June 3, 1980, the date the written ordinance was signed and adopted.

We are of the opinion the filing of the bill of exceptions on June 13, 1980, was timely because the rezoning ordinance did not become effective until written, signed, and formally adopted on June 3, 1980. The statutory provision for the effective date of an ordinance is found in MCA § 21-13-11 (Supp.1981) which states:

Every ordinance passed by the governing body of a municipality, except as is otherwise provided by law, shall be certified by a municipal clerk, signed by the mayor or a majority of all the members of the governing body, recorded in the ordinance book, and published at least one (1) time in some newspaper published in such municipality, or, if there be no such newspaper, then in a newspaper within the county having general circulation in said municipality, or, if there be no newspaper published in or having general circulation in same, then in any newspaper published in the State of Mississippi having general circulation in said county; and all of same shall be done before such ordinance shall be effective. No ordinance shall be in force for one (1) month after its passage; however, any ordinance for the immediate and temporary preservation of the public peace, health or safety or for other good cause, which is adopted by unanimous vote of all members of the governing body, may be made effective from and after its passage by a unanimous vote of all members of the governing body. However, in such cases, such ordinance shall contain a statement of reason why it is necessary that same become immediately effective. All such ordinances shall be published and recorded in the ordinance book in the same manner as other ordinances, but shall become effective immediately upon the adoption thereof, and prior to being so recorded and published. Nothing in this section shall apply to ordinances appropriating money for the payment of the current expenses of the municipality or the payment of sums due on any contract previously made. [Emphasis added].

Therefore, we are of the opinion the bill of exceptions was filed within the statutory ten day time period.

AFFIRMED.

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


text:
    NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al., v. CLAIBORNE HARDWARE COMPANY, et al.
    No. 51488.
    Supreme Court of Mississippi.
    Oct. 14, 1981.
    Certiorari Granted Nov. 9, 1981.
    See 102 S.Ct. 565.
    Alix H. Sanders, Greenwood, William R. Richardson, Jr., Arthur M. Weisburd, James Robertson, Lloyd N. Cutler, Washington, D. C., Frank R. Parker, Julie Ann Epps, Royals, Taylor & Epps, A. Spencer Gilbert, III, Gilbert & Moore, Jackson, for appellant.
    Dixon L. Pyles, Pyles & Tucker, Crane D. Kipp, Shell, Buford, Bufkin, Callicutt & Perry, Christopher J. Walker, Upshaw & Ladner, Jackson, for appellee.
   ORDER AMENDING JUDGMENT

The Court considered a motion of appel-lees filed March 30, 1981 to correct judgment entered by this Court in this case on December 10, 1980. 393 So.2d 1290 (petitioners for rehearing denied March 4, 1981), said motion having been based upon a contention that costs were erroneously assessed against appellees.

On consideration of said motion and the response of appellants in opposition thereto, this Court finds and adjudges that said judgment be and is hereby amended to provide as follows:

(1) All costs on appeal, including appeal transcript and all costs incidental to the appeal, are adjudged and ordered taxed against appellees.

(2) Of the total costs accrued in the trial court, 38/148 therefore are adjudged and ordered taxed against appellees, this Court having found and adjudged that of the 148 appellants-defendants, against whom suit was brought by appellees, 38 have prosecuted their appeal with effect and have been discharged by the judgment of this Court.

(3) Of the remaining 110/148 of the accrued trial court costs, one-half thereof is adjudged and ordered taxed against appel-lees and the remaining one-half thereof is adjudged and ordered taxed against appellants.

FOR WHICH SAID COSTS AS ADJUDGED ABOVE, LET EXECUTION ISSUE.

All Justices concur.


author: WALKER, Justice,

text:
    Darnell BUMPHIS v. STATE of Mississippi (Robert Herring, Sheriff of Lee County).
    No. 53263.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Gene Barton, Tupelo, for appellant.
    Bill Allain, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

Darnell Bumphis was convicted on December 11, 1980, on two counts of aggravated assault in Lee County Circuit Court and sentenced to serve seven years on each count to run concurrently in the State Department of Corrections. He has been confined in the Lee County jail since that time. Bail has been set at $3,000.00

On May 22, 1981, Bumphis petitioned the Lee County Circuit Court, accompanied by an affidavit of indigency, for a writ of habeas corpus seeking release on his personal recognizance. The petition alleged:

(1) Bumphis had been found to be an indigent at his preliminary hearing;

(2) Bumphis has no property of value except for “a part interest in a non-registered dog located somewhere in Lee County;”

(3) Prior to trial, Bumphis was released on a $1,000.00 bond and made all appearances in the circuit court as required; and

(4) He had family ties in Lee County.

Bumphis contends the court erred by not permitting him a hearing at which he could put on evidence in support of his petition.

Mississippi Code Annotated section 99-35-115 (1972) states in part:

A person convicted of any felony other than those enumerated in the foregoing paragraph [treason, murder, rape, arson, burglary or robbery] shall be entitled to be released from imprisonment on bail pending an appeal to the supreme court.

Under this statute, Bumphis, who was convicted of aggravated assault, was entitled to be released from imprisonment on bail pending his appeal to the Supreme Court.

In Lee v. Lawson, 375 So.2d 1019 (Miss. 1979), this Court suggested certain criteria to be applied in determining the amount of bail, if any, that should be required as a prerequisite to a defendant’s release while awaiting trial. Those are:

(1) The length of his residence in the community;
(2) His employment status and history and his financial condition;
(3) His reputation, character and mental condition;
(4) His reputation, character and mental condition;
(5) His prior criminal record, including any record of prior release on recognizance or on bail;
(6) The identity of responsible members of the community who would vouch for defendant’s reliability;
(7) The nature of the offense charged and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of non-appearance; and
(8) Any other factors indicating the defendant’s ties to the community or bearing on the risk of willful failure to appear. (375 So.2d at 1024).

In cases such as this where bail after conviction is a matter of right, the criteria for fixing bail are the same as the eight enumerated in Lee v. Lawson, supra, plus consideration of the sentence imposed and any relevant evidence adduced at trial which has a bearing on the issue.

A petitioner should state with particularity, in his petition, the favorable factors upon which he relies when seeking a reduction of bail, release on minimal bail or personal recognizance.

If the petition fails to state sufficient facts which would justify the relief sought, the court may deny the petition and dismiss it without a hearing, endorsing thereon his reasons for denying same.

If the petition states sufficient facts warranting relief, a hearing should be held to allow petitioner to prove his allegations and to allow the state to put on such proof as might be relevant to the question.

At the hearing, it is incumbent upon the petitioner to present evidence with respect to factors favorable to his release.

The court should take notice of any factors favorable or unfavorable which are a matter of court record.

At the conclusion of the hearing, the court should make a record of its findings and reasons for whatever order is entered.

We have carefully considered the record in this case, and, conceding that the defendant is indigent, has family ties in Clay County, and made all court appearances prior to conviction while under $1,000.00 bail, this would not be sufficient to justify this Court holding that the trial judge was manifestly wrong in not reducing the defendant’s bail below $3,000.00 or releasing the defendant on his own recognizance, where the defendant has been convicted of two charges of aggravated assault, crimes of violence, and sentenced to concurrent terms of seven years.

The judgment of the trial court in denying and dismissing, without a hearing, the petition is affirmed.

AFFIRMED.

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


author: SUGG, Justice,

text:
    TELCOM SYSTEMS, INC. v. The LAUDERDALE COUNTY BOARD OF SUPERVISORS, its Individual Members: W. H. Billy Melton, Sonny Cunningham, Lamar Taylor, Stanley Shannon and Ikie E. Ethridge and South Central Bell Telephone Company.
    No. 52887.
    Supreme Court of Mississippi.
    Oct. 21, 1981.
    H. W. “Sonny” Jones, William B. Jacob, Meridian, for appellant.
    Dean, Cameron, Prichard & Young, 0. Winston Cameron, Sandusky, Bailey, For-tenberry & Stephenson, Robert W. Bailey, Meridian, Butler, Snow, O’Mara, Stevens & Cannada, George H. Butler, Roger M. Flynt, Jr., Jackson, for appellees.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Telcom Systems, Inc. brought this suit to enjoin the Board of Supervisors of Lauder-dale County and South Central Bell Telephone Company from carrying out a contract for telephone service between the Board and South Central Bell. The Chancery Court of Lauderdale County, Chancellor William Neville presiding, dismissed complainant’s suit and complainant appeals. Concluding that the judgment of the chancellor was correct, we affirm.

There was no significant conflict in the evidence and the basic facts are undisputed. The Federal Communications Commission ruled in 1968 that subscribers to telephone service could, with some restrictions, attach customer owned equipment to the telephone network of the utility providing service. That decision gave rise to a new industry known as the “interconnect” industry consisting of business firms engaged in leasing or selling telephone terminal equipment that can be connected with the network of the utility providing telephone service. Such “interconnect” companies do not provide telephone service, are not public utilities, and are not regulated by the Mississippi Public Service Commission.

Telcom is an “interconnect” company which sells and leases telephone equipment. It does not provide complete telephone service but sells or rents telephone equipment, including telephone sets and private branch exchanges (PBX’s), which are capable of being connected to South Central Bell’s telephone network.

In response to a request from the Board, South Central Bell submitted a proposal on April 23, 1980 for telephone service, including a PBX, for the Lauderdale County Courthouse in accordance with the terms and conditions of the “applicable tariff in effect at the time service is provided.” On or about May 1, 1980, the Board accepted the proposal.

Subsequently, on various occasions, Tel-com requested the Board to reconsider its decision to subscribe for service and equipment from South Central Bell, and contended that the Board should not have subscribed for such service without competitive bidding. After several conferences with representatives of Telcom, the Board reaffirmed its decision to subscribe to service from South Central Bell without competitive bidding. Thereafter, Telcom filed the present suit.

South Central Bell is a duly authorized and established telephone public utility regulated by the Mississippi Public Service Commission. It is the only company certificated and authorized to provide full telephone service in Meridian. Despite the advent of the connection of customer provided equipment authorized by the Federal Communications Commission in 1968, South Central Bell has continued to provide complete telephone service, under regulation, and has not sold PBX equipment to its subscribers.

Section 77-3-35 Mississippi Code Annotated (1972) requires South Central Bell to file with the Public Service Commission, and to keep open for public inspection, schedules showing all rates and charges for its intrastate telephone service and equipment in Mississippi. At all times material here, South Central Bell had duly filed the required schedule with the Public Service Commission. Section 77-3-35 also prohibits any public utility, including South Central Bell, from charging or receiving a greater or less compensation for its services than that prescribed in its schedule. The rates and charges in South Central Bell’s proposal to the Board on April 23, 1980, were in accordance with the schedule of such rates and charges on file with the Public Service Commission at that time.

Telcom seeks to enjoin the county from subscribing for full telecommunication service from South Central Bell. This case presents the following issue not heretofore considered by this Court: Do the public bid statutes of Mississippi prohibit a public body from subscribing for full public utility service from a regulated utility authorized to provide such service and require the public body to take bids for a part of that service?

In 81 A.L.R. 3rd, §§ 2, 981, 982, 983 (1977), the purpose requiring competitive bidding on public contracts and the majority rule when such contract is with a regulated public utility is stated as follows:

The purpose of provisions requiring that contracts with public authorities be let only after competitive bidding are to secure economy in the construction of public works and the expenditures of public funds for materials and supplies needed by public bodies; to protect the public from collusive contracts; to prevent favoritism, fraud, extravagance, and improvidence in the procurement of these things for the use of the state and its local self-governing subdivisions; and to promote actual, honest, and effective competition to the end that each proposal or bid received and considered for the construction of a public improvement, the supplying of materials for public use, etc., may be in competition with all other bids upon the same basis, so that all such public contracts may be secured at the lowest cost to taxpayers.
While a statutory provision may specifically except contracts with a public utility from a general statutory requirement that public contracts be awarded only after public advertising for bids, the courts are generally called upon to determine whether statutes or other enactments requiring competitive bidding for public contracts permit an exception for contracts with public utilities. It appears that a substantial majority of the courts that have considered the question have held or recognized, either expressly or impliedly, that a contract between a public body and a public utility for the furnishing of public utility service is not ordinarily to be considered as falling within the purview or intendment of a statute, ordinance, or other enactment requiring that public contracts shall only be let upon the basis of competitive bidding.
Several courts holding that competitive bidding was not required for contracts between public bodies and public utilities for the furnishing of utility service has stressed that the absence of competitive bidding did not provide an opportunity for fraud or favoritism because a public utility is subject to state regulation and is only permitted to charge rates that have been fixed and determined according to tariffs which the utility has been required to file with the regulatory body.

One of the leading cases cited in A.L.R. is Wallace Stevens, Inc., v. Lafourche Par. Hosp. Dist. No. 3, La.App., 308 So.2d 299, affirmed by the Louisiana Supreme Court, 323 So.2d 794 (1975). The Louisiana Court of Appeals held that the public bid law was not applicable to a contract with a regulated public utility and stated:

Missing entirely from the instant case are the factors with which the statute was intended to deal. The telephone company is a public utility regulated by the Louisiana Public Service Commission pursuant to authority contained in Article 6 § 3 and § 4 of the Louisiana Constitution of 1921. The rules and the regulations of the Public Service Commission require the prior filing with it of tariffs which the telephone company proposes to charge. South Central Bell can only charge rates in accordance with the published tariffs filed with the Public Service Commission. It can not charge less for it can not legally discriminate between subscribers. Pursuant to statutory authority public utilities are regulated by government agencies in the interest of the utility, its patrons and the public, and this regulation serves as a substitute for competition. When a public utility is involved, the public is adequately protected against fraud, favoritism, collusion, or exorbitant and extortionate prices. Accordingly, we hold that no public bids are required.
The Hospital District Board has determined in its discretion to subscribe for telephone service from a regulated public utility rather than purchase its own equipment. This we believe it had every right to do. Had it chosen to purchase or lease telephone equipment from an independent, unregulated equipment supplier, the contract would then be required to be let for competitive bid under L.S.A.-R.S. 38:2211, as the protection afforded to the public by regulation of the utility company would then be absent. If public bidding were required in this case, the only one who could not submit a bid would be South Central Bell because they are prohibited from selling their equipment to subscribers, and further because their charges are fixed by the tariffs and they are prohibited from charging either more or less than the tariffs which have been approved by the Public Service Commission. In either event, the public is protected. In the first instance by regulation and in the second instance by competition.

South Central Bell is a public utility regulated by the Mississippi Public Service Commission under Title 77 Mississippi Code Annotated (1972) as mandated by Section 186 of the Mississippi Constitution of 1890. As heretofore noted South Central Bell is required by statute to file with the Commission a schedule of all rates and charges for its intrastate telephone service and may not collect for its service a greater or less compensation than prescribed in the schedules. Under section 77-3-37 Mississippi Code Annotated (1972) no public utility may make any change in any rate which has been duly established and succeeding sections provide for a hearing on any requested rate change.

The Board of Supervisors, in its discretion, decided to subscribe for telephone service from South Central Bell, a regulated public utility rather than purchase its own equipment or lease equipment from an independent supplier to be connected to South Central Bell’s telephone network. This it had every right to do. However, had the Board chosen to purchase or lease equipment from an independent, unregulated equipment supplier, the contract would then be required to be let on competitive bids under the public bid laws of Mississippi because the protection afforded to the public by regulation of South Central Bell would then be absent. The public is protected in either event because if a public body subscribes for service from a regulated public utility, the public is protected by regulation. If the public body determines to purchase or lease its own equipment, the public would be protected by competitive bids.

We therefore follow the weight of authority and hold that the public utility service contract in this case is not within the intendment of statutory public bid requirements. The absence of competitive bidding in this case did not provide an opportunity for fraud or favoritism. South Central Bell, as a public utility, is subject to state regulation and is only permitted to charge rates that have been fixed and determined according to tariffs which it has been required to file with the Mississippi Public Service Commission. The Board was entitled to subscribe for telephone services with South Central Bell, a regulated public utility, without first receiving public bids on the telephone equipment to be used in the Lauderdale County Courthouse.

AFFIRMED.

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

      . Schedules of rates and charges are generally referred to in the industry as tariffs.