author: HAWKINS, Justice, for the Court:

text:
    Doris Brown WALL v. STATE of Mississippi.
    No. 53133.
    Supreme Court of Mississippi.
    April 28, 1982.
    Rehearing Denied June 2, 1982.
    Percy S. Stanfield, Jr., Merrida Coxwell, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROY NOBLE LEE and HAWKINS, JJ.
   HAWKINS, Justice, for the Court:

Doris Brown Wall appeals from a conviction of murder and a life imprisonment sentence by the Circuit Court of Walthall County. We affirm.

This is her second appeal. On her first appeal from a conviction of murder, we reversed and remanded. Wall v. Brown, 379 So.2d 529 (Miss.1980).

Our first opinion contains an adequate and accurate summary of the same evidence which was brought out in her second trial, and no necessity exists for again detailing the facts.

Mrs. Wall’s first assignment of error is that the verdict of the jury is against the overwhelming weight of the evidence.

As stated in our first opinion, this is a bizarre case. In 1977 Mrs. Wall owned a roadhouse in Kentwood, Louisiana, known as the “Tick-Tock Lounge,” or “Doris’ Place.” On the same premises were the dwelling house of Mrs. Wall and a trailer. Leroy Dillon, a thirteen year old boy, lived in the trailer with his grandparents and an uncle. This boy, mostly unsupervised, spent much of his time in Mrs. Wall’s home playing with her son (nine years old) and loitering in her place of business, playing pool and occasionally drinking beer. Leroy sometimes referred to Mrs. Wall as “Mom”.

On Friday night, December 30, 1977, Leroy murdered Alvin Randall just outside the victim’s home, six miles north of Tylertown and approximately thirty miles from Kent-wood. Randall’s wife, Erma, had picked up Leroy at Mrs. Wall’s place of business that afternoon and let him out just before they reached the Randall house, where he hid in the bushes.

Pursuant to plan, Erma Randall placed a shotgun outside the house for Leroy to use. At some time after dark, Leroy slammed the car door of a car parked in the yard, and when Mr. Randall came outside to investigate, Leroy shot and killed him. The blast was at such close range that the wadding from the shell penetrated Mr. Randall’s chest along with the pellets.

Erma Randall then drove Leroy to the Tick-Tock Lounge where they left the shotgun—according to them—with Mrs. Wall to dispose of it in a river nearby, and Leroy threw the empty shell in the grass across the highway. The shotgun shell was of an unusual, foreign manufacture.

Leroy and Erma Randall both testified that the plan and direction for this murder had been furnished by Mrs. Wall. Mrs. Wall, however, denied having any part or knowledge whatsoever in the slaying.

We have carefully reviewed this record with special caution, in view of its statistical as well as human improbability, and due to the fact that the only direct evidence of Mrs. Wall’s guilt came from the two confessed participants.

We commend counsel for Mrs. Wall upon their eloquent and persuasive brief on this assignment, but our review convinces us that the jury had ample evidence upon which to reach a verdict of guilty. Under lengthy direct examination and skillful, exhaustive cross-examination, both Leroy and Erma Randall gave testimony which the jury had a right under the law to believe. The weight of Mrs. Wall’s testimony and her alibi witnesses were also for the jury to consider. We cannot, as an appellate Court, state that the jury verdict was against the overwhelming weight of the evidence.

The second assignment of error was the giving of the following instruction to the State:

The Court instructs the jury that aiding and abetting involves some participation in the criminal act, and this may be evidenced by some word, overt act or deed.

This instruction contains a correct statement of the law, but because it is abstract, Mrs. Wall complains that it is reversible error to give it.

This assignment completely overlooks the court’s instructions to the jury to consider the instructions as a whole, and not to single out one instruction. Instruction C—5 given by the circuit judge charged the jury that they must believe beyond a reasonable doubt from the evidence that Mrs. Wall, “. . . with malice aforethought arranged for, counseled, or commanded Leroy Dillon to wilfully, unlawfully and feloniously with malice aforethought kill and murder . . . Alvin Randall . . .,” before they could be justified in returning a guilty verdict. The jury, therefore, could not have been misled by this one abstract instruction. Carter v. State, 169 Miss. 285, 152 So. 876 (1934); Harper v. State, 83 Miss. 402, 35 So. 572 (Miss.1904).

We are constrained to add as a caution to prosecuting attorneys that there appears to be no necessity for the above instruction. When the circuit judge has adequately instructed a jury on all the points of law involved in a case, the State should eschew a needless risk of reversal by adding pure surplusage or repetitious instructions.

The remaining assignment of error worth noting was the admission into evidence of a photograph of Leroy and an officer showing Leroy pointing to the empty shell found in the grass. The testimony pertaining to the admission of this photograph was that the officers went across the highway from Mrs. Wall’s lounge and searched for the empty shell. When one of the officers located it, he pointed it out to Leroy, who identified it as the shell. Then, without picking up the shell, a picture was taken of the officer and Leroy, with Leroy pointing to it. Leroy was wearing the black jacket he wore when he killed Mr. Randall.

The appellant now complains that this picture is in the nature of a tableaux vivant (a “living picture”), condemned in May v. State, 199 So.2d 635 (Miss.1967); Buie v. State, 217 Miss. 695, 64 So.2d 897 (1953); Martin v. State, 217 Miss. 506, 64 So.2d 629 (Miss.1953); and Fore v. State, 75 Miss. 727, 23 So. 710 (1898). These cases disapprove pictures depicting reconstructed versions of a crime or scene, in order to bolster a witness’ testimony on disputed facts.

Clearly a picture of nothing more than the shell lying in the grass, where it had been found by the officer, would have been admissible. As it lay there, it constituted actual evidence of a part of the crime. Furthermore, there is no dispute about this being the spent shell, that Leroy had thrown it there, or that he was wearing a black jacket when he killed Mr. Randall. The mere fact that this photograph shows Leroy in the black jacket pointing to the shell did not prejudice the jury against Mrs. Wall. She denied having any participation or knowledge whatsoever about Leroy’s criminal conduct.

This was not a tableaux vivant in any event, as defined in our cases; however, there would have been some question of the propriety of this photograph, showing Leroy pointing to the empty shell, had there been any dispute on the particular fact of Leroy throwing the shell into the grass.

This case was fairly presented by the State under the supervision of a restrained, courteous and manifestly able circuit judge. No reversible error has been committed, and the judgment of conviction is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice, for the Court:

license: Public Domain

text:
    Rennie Ray HARRIS v. STATE of Mississippi.
    No. 53420.
    Supreme Court of Mississippi.
    May 5, 1982.

      M. Charles May, C. Eiland Harris, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice, for the Court:

Rennie Ray Harris was indicted and tried in the Circuit Court of the First Judicial District of Hinds County, Honorable William F. Coleman, presiding, on a charge of murder. He was tried on April 13, 1981, convicted of manslaughter and sentenced by the court to serve a term of twenty (20) years with the Mississippi Department of Corrections. He has appealed and assigns seven (7) errors in the trial below.

During the early morning hours of October 20, 1980, Cynthia Coleman was awakened in her apartment, Building # 13 of the Christian Brothers Apartments, Jackson, Mississippi, by a noise outside her apartment, which sounded as if the stair railings were rattling. She got up and walked from her bedroom into the living room near the stairwell, where she heard something like footsteps coming down the stairs. Mrs. Coleman looked out the living room window facing the parking lot and saw three (3) men fighting along the sidewalk. As the men turned left and moved outside, she walked back to her bedroom window where she could obtain a better view of what was happening. In front of the next apartment building (Building # 14), she saw two (2) men knock down a third man and one of the attackers strike the fallen person several times with a large stick or board. The man on the ground never cried out. She saw one of the assailants reach down and appear to take something from the victim’s pockets.

Mrs. Coleman awakened her male bedfellow and told him what she had seen. He advised her not to worry because, if the man were hurt he would cry out for help; he told her she should go back to sleep. However, she went into the living room and watched the two men as they walked back towards her apartment building. When the two men walked up the sidewalk, Mrs. Coleman opened her door, which faced out into the breezeway, and looked down through the railing at them. When they were approximately twenty (20) feet away, one of the men saw her and said, “Hey, Miss Lady, what’s going on?” Mrs. Coleman later identified the speaker as appellant, but she could not identify the other man, since his head was turned away at the time. According to Mrs. Coleman, the men walked through the breezeway and out of sight. She went back to her bedroom window and looked at the victim still lying on the ground, but the body never moved. The police arrived on the scene approximately thirty (30) to forty-five (45) minutes later.

Mary Belle Griffin lived in the same apartment building but in the lower left-hand corner. She was awakened at approximately 3:00 a.m. when she heard a scuffling noise outside her door. She got out of bed and walked into the bathroom, when she heard a knock on the front door. She answered the door and saw James Bass, a neighbor who lived directly across the breezeway from her. He stated that someone had beaten a man outside their building and asked her to call the police. First, Mrs. Griffin and Bass walked over to the victim’s body (later identified as Jessie James Shelby, a deaf mute), saw that he appeared to be dead, and she immediately called the police. At that time, a drizzling rain was falling; however, it began to rain somewhat harder when the police arrived shortly thereafter.

Bass testified he heard the two men come down the stairs of his apartment building. He looked out the living room window and watched the two men beating and shoving on Shelby as they moved down the sidewalk. They knocked Shelby down in front of Building # 14 and one of the men struck Shelby more than once with a board or stick while he was on the ground. The other man reached down and took something from Shelby’s pockets. Then the two men walked back towards his building and through the breezeway, but Bass could not identify them because his window was “foggy.” He heard Mrs. Coleman’s door close up on the second level after he heard one of the two men speak to her. He thought she said something in response, but could not make out the conversation. Bass walked out to the body with Mrs. Griffin. He said that he saw two people looking out the open bedroom window of Mrs. Coleman’s apartment, but could not identify them.

When the police arrived, they found the body of Jessie James Shelby lying on the steps of apartment Building # 14. A large board was found near the body and a splintered piece of wood, apparently from the same board, was found nearby. Shelby was dead, his pockets had been turned inside out and twenty-one cents (21$) was found next to the body. The police interviewed residents of the apartment complex, including Mrs. Coleman, who said that she did not see anything. Approximately one week later, Mrs. Coleman went to the police and told them that she had seen Shelby slain but that she denied knowing anything about it when the police first came to see her because she was afraid and did not want to get involved. Mrs. Coleman picked out appellant’s picture from two separate groups of photographs shown to her by the police, after which the appellant was arrested.

I.-II.

Did the lower court err in declining to sustain appellant’s motion for a directed verdict after the State concluded its, evidence?

Was the verdict of the jury against the overwhelming weight of the evidence?

After the motion for directed verdict was overruled, appellant introduced evidence in his own behalf. It is elemental that after a motion for directed verdict is overruled at the conclusion of the State’s evidence, and the appellant proceeds to introduce evidence in his own behalf, the point is waived. In order to preserve it, the appellant must renew his motion for a directed verdict at the conclusion of all the evidence. Ross v. State, 234 Miss. 309, 106 So.2d 56 (1958); Fields v. State, 293 So.2d 430 (Miss.1974). Also see State v. Russell, 358 So.2d 409, 413 (Miss.1978). However, we consider the question of whether or not the verdict is contrary to the overwhelming weight of the evidence.

In addition to the evidence set forth here-inabove, one James Herring testified that he saw appellant at a poolroom in the early morning hours of October 20,1980, and that he heard appellant say to several people, “That deaf dude has won a lot of money. When he leaves, let’s take it.”

We are of the opinion that the evidence was sufficient to constitute a guilt issue for the jury and that it supported the verdict of the jury.

III.

Was the verdict of “Guilty of Manslaughter” supported by the evidence?

The lower court granted a manslaughter instruction at the request of the State, and, while the appellant contends the court was required to grant the manslaughter instruction, he argues that the evidence in the ease did not support a conviction for manslaughter and that granting the instruction constitutes error.

The facts of this ease, as stated, support a conviction of murder or manslaughter. Again, it is elemental that where the evidence supports a charge of murder, the appellant cannot complain of a conviction on the lesser charge of manslaughter, the rationale being that he is fortunate to be convicted of the lesser offense. The Court stated in Huston v. State, 105 Miss. 413, 62 So. 421 (1913):

Technically the contention of defendant may be flawless; but practically we think it is without substance or merit .... Upon an indictment charging murder, the person charged may be legally convicted of manslaughter, provided there is evidence justifying the belief that the defendant is guilty of the lesser crime. This is admitted; but it is contended that there was no evidence even tending to prove manslaughter. The reply is that there was abundant evidence to prove murder . . . and we are unable to see how he can complain of the instruction on manslaughter, or of the verdict of the jury. [105 Miss. at 419-420, 62 So. at 422].

The lower court committed no error in granting the manslaughter instruction.

IV.-V.

Did the lower court err in admitting photographs of the scene that were not true and correct representations as it existed on the night of the homicide?

Did the lower court err in admitting State’s Exhibit # 8, a photograph, which contained the picture of a policeman, when it was not a true and correct representation of the scene at the time of the homicide?

The homicide occurred at approximately 3:00 a.m. on October 20, 1980. A number of photographs were taken by Officer Billy Joe Biggert on April 9,1981, which showed the scene during daylight hours. They included shots of the apartment building, the walks and grounds around the building, and the railings and entrance to the building. The State’s announced purpose for introducing the photographs was to show distance, points of view, and layout of the scene. They were indicated to be true and accurate representations of the scene at the time of the crime, except for time of day and the fact that they were taken in the daylight rather than nighttime. The photographs were relevant to show the scene and the distances and were competent with the explanation of the differences in the scene because of nighttime and daylight hours. The court did not abuse its discretion in admitting such photographs. Willette v. State, 224 Miss. 829, 80 So.2d 836 (1955).

The most serious argument of appellant, concerning introduction of the photographs, relates to Exhibit # 8, which shows a police investigator standing near the door of Mrs. Coleman’s apartment. Appellant contends that it is a staged picture to impress the jury and is a pictorial tableau (“tableau vivant”), which has been held inadmissible by this Court. Fore v. State, 75 Miss. 727, 23 So. 710 (1898); Brett v. State, 94 Miss. 669, 47 So. 781 (1909); Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953); and Buie v. State, 217 Miss. 695, 64 So.2d 897 (1953).

Prosecuting attorneys and trial judges should be cautious in offering, and admitting, in evidence photographs of a staged scene with individuals pointing to objects or standing around the scene in situations similar to the one here. However, under the facts of this case, it is difficult to see how the appellant could be prejudiced by the fact that a police investigator appeared in the photograph, particularly in view of the admissibility of many other photographs in the case. In Wall v. State, 413 So.2d 1014, (Miss.1982), the Court held that the appearance in a photograph of a chief witness for the State, dressed like he was on the night of the homicide, pointing at a vital item of evidence, did not constitute vital item of evidence, did not constitute reversible error under the facts of that case. We are of the same opinion in the case sub judice.

VI.-VII.

We have carefully considered the last two contentions of appellant to the effect that (1) the court erred in permitting impeachment of a witness with prior inconsistent statements after the prosecuting attorney failed to produce a prior written statement, and (2) the verdict of the jury evinces bias and prejudice on the part of the jury, and find same to be without merit.

The judgment of the lower court is affirmed.

AFFIRMED.

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

      . Mrs. Coleman lived in a building comprised of four (4) units on each side, with a breezeway in the middle and stairs leading to the second level.

      . The breezeway was well lighted when Mrs. Coleman saw the two men enter same.

      . In the alternative, the defendant may also request a peremptory instruction of not guilty.

      . Appellant contradicts himself.


text:
    David D. McLEOD v. James W. WHITTEN, Jr.
    No. 53183.
    Supreme Court of Mississippi.
    May 12, 1982.

      Ramsey, Bodron, Robinson, Andrews & Yoste, Dean Andrews, Jr., H. M. Yoste, Jr., Vicksburg, for appellant;
    Campbell & DeLong, Roy D. Campbell, Jr., Greenville, for appellee.
    Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice, for the Court:

David D. McLeod filed suit against James W. Whitten, Jr. in the Circuit Court of Issaquena County, Honorable John E. Ellis, presiding, for personal injuries sustained in a one-vehicle accident. The jury returned a verdict in favor of Whitten, judgment was entered in his behalf, and McLeod has appealed here. Whitten has cross-appealed and contends that the Court erred in declining to sustain his plea in bar raising the validity of a release executed by McLeod.

Appellant and appellee are brothers-in-law, and they and their families ate Christmas dinner together in Vicksburg at noon on December 25, 1976. Later that afternoon, appellant and appellee decided to drive into nearby Issaquena County and look for deer in soybean fields. Appellee was driving his four-wheel drive pickup truck and appellant was sitting on the passenger side. There was a drizzling rain and visibility was limited. The field was rough in places and the men were jostled about as the truck made its way over and around the fields. Appellee drove the vehicle approximately ten (10) to twelve (12) miles per hour as he looked to the front and to his left for deer, while appellant looked to the front and to his right for deer. Suddenly, without warning, the front wheels of the truck dropped into a natural washout or ditch, approximately three (3) feet deep and three (3) feet wide, running perpendicular to the truck. Appellant, whose seatbelt was not fastened, was thrown forward into the dashboard and windshield, causing his head to strike the windshield and, as a result, he sustained serious injuries. Three (3) friends were called on the CB radio, and they arrived in four-wheel Jeeps, pulled the Whitten truck out of the ditch and transported appellant to an awaiting ambulance on the highway. Subsequently, appellant was treated and operated for a ruptured disc and suffered a permanent disability from the accident.

Appellee, in his defense, contended appellant assumed the risk involved in riding over the soybean fields with appellee and hunting deer under the circumstances here-inabove stated.

Appellant contends (1) that the lower court erred in granting assumption of risk Instruction D-3 over his objection, and (2) the lower court erred in failing to grant him a peremptory instruction on the issue of liability.

The Instruction D-3 follows:

The Court instructs the jury that if you find from a preponderance of the evidence in this case that the Plaintiff
(1) undertook to hunt for deer by riding in the Defendant’s 4-Wheel-drive pickup truck over wet, muddy harvested bean fields in the late afternoon of Christmas Day when it was drizzling rain and visibility was poor and that the position in which the Plaintiff thereby placed himself was inconsistent with the Plaintiff’s safety by reason of the danger that the Defendant’s truck might encounter rough ground with resultant injury to either or both occupants of Defendant’s pickup truck;
(2) that the plaintiff knew and appreciated the danger; and
(3) that the Plaintiff deliberately and voluntarily chose to expose himself to that danger in such a manner as to assent to the continuance of the dangerous situation or activity; then the Plaintiff assumed the risk of injury and cannot recover from the Defendant, and your verdict must be for the Defendant.

Appellant’s objection to the instruction included omission of the question whether or not appellee was exercising due care in the operation of his vehicle at the time of the accident. .

As stated in Elias v. New Laurel Radio Station, 245 Miss. 170, 146 So.2d 558 (1952), there are three (3) essentials involved in assumption of risk:

(1) Knowledge on the part of the injured party of the condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition. [245 Miss, at 179, 146 So.2d at 561-562],

The facts of Hatcher v. Daniels, 228 Miss. 196, 87 So.2d 490 (1956) are similar to those in the present case. There, Hatcher and Daniels owned a fishing camp and late one evening they drove to the camp in Daniels’ pickup truck. The road was an unimproved dirt road cut through the woods with ruts and stumps in the roadway, and grass and weeds growing up around the stumps. The parties had traveled the road often and both knew the hazards and dangers incident to travel over the road. As they returned the next day after a rain had caused ruts, mudholes and pools in the road, Hatcher told Daniels to watch out because the roads were bad. As Daniels started through a puddle of water, he accelerated the speed of the truck but it was stopped suddenly by a stump that was covered by water. Hatcher was injured and sued Daniels, charging negligence in the operation of the truck. Daniels denied negligence and asserted assumption of risk as a defense.

The Hatcher Court held that granting the instruction was error, stating the rule is well established that the owner or operator of an automobile owes the duty to an invited guest to exercise reasonable care in its operation and not to unreasonably expose him to danger and injury by increasing the hazard of travel. Further, the Court said the instruction eliminated from the jury’s consideration the question of the defendant’s negligence in the operation of the vehicle. The Court also stated:

An occupant of a motor vehicle, as an invited or permissive guest, assumes the risk, as between himself and his host, of injury from known or obvious dangers or hazards incident to the ordinary operation of the vehicle, and, therefore, cannot recover for injuries resulting therefrom. He assumes all the ordinary risks of injury incident to travel in a motor vehicle controlled by a reasonably prudent driver. He does not, however, assume the risk of a danger created by the negligent operation of a motor vehicle over which he has no control. [228 Miss, at 207, 87 So.2d at 493],

Herod v. Grant, 262 So.2d 781 (Miss.1972), involved facts similar to the present case, except that Herod and Grant were head-lighting deer at 10:00 at night. Grant was driving a truck across a cultivated field at speeds up to twenty (20) miles per hour, while Herod sat on the toolbox in the rear of the truck. As they chased a deer, the truck swerved, and Herod was thrown out and injured. Under those facts, the Court held that Herod assumed the risk which resulted in his injury. Also see Singleton v. Wiley, 372 So.2d 272 (Miss.1979).

Herod v. Grant, supra, followed the Georgia deer hunting case of De Winne v. Waldrep, 101 Ga.App. 570, 114 S.E.2d 455 (1960). There, the plaintiff was standing in the back of the defendant’s pickup truck leaning against the cab while they hunted deer. The defendant was watching deer and failed to see a tree until the truck was so close that he had to swerve in order to miss it. The plaintiff fell out of the truck and was injured. In holding that the plaintiff should reasonably have foreseen that a bump or turn might throw him out of the truck, the Georgia Court said in part:

Especially should this have been realized when the plaintiff’s attention would not be on the route over which the truck would travel but must of necessity have to be on the deer being hunted. [114 S.E.2d at 457],

Appellee testified that he didn’t see the washout before running into it; that they were in a wide-open field and he didn’t think it as necessary to watch for obstacles as on a highway; that he was looking out the window for deer at the moment he hit the ditch and didn’t know which way he was looking; and that it was light but getting a little dark.

Appellant testified that he knew, in riding over the bean fields, that they would be jostled about in the truck and that there were going to be soft spots, chuck holes, rough places and washouts in the fields. He further testified:

Q It is drizzling rain?
A Yes, sir.
Q Hazy. Didn’t you say it was hazy?
A Yes, sir.
Q And visibility, while it wasn’t dark, was limited, wasn’t it?
A Yes, sir. Somewhat.
Q Because it was getting — beginning to get dark, I believe you said it wasn’t dark, but beginning to get dark.
A Yes, sir.
Q All right. Now, under those conditions you were looking for deer, were you not?
A Yes, sir.
Q And Billy was looking for deer, wasn’t he?
A Yes, sir.
Q Both of you were looking for deer, isn’t that correct?
A Yes, sir.
Q And you knew that, didn’t you?
A That is what we were there for.
Q Sure. You knew he was looking for deer just like you were. And he was driving, too.
A Yes, sir.
Q About, you think, maybe 10 miles an hour, not over 15?
A No, sir. Not over.

We think that the Instruction D-3 should have contained a fourth paragraph similar to the following:

That the defendant was operating the pickup truck in a reasonable manner and as an ordinarily prudent person would operate it under the same or similar circumstances.

However, both parties testified that the main purpose of riding in the pickup truck over the bean fields, where the beans had already been harvested, in the rough and risky conditions of the field, was to look for deer and both parties testified that they were looking out of the sides of the truck. That purpose was a part of the risk assumed by both parties.

Appellant obtained an instruction which told the jury that, if it believed from a preponderance of the evidence appellee failed to exercise reasonable care in the operation of his vehicle, then he was negligent and, if such negligence was the proximate cause of the injuries received, the verdict should be for appellant. The Court further instructed the jury, at the request of appellant, that, if it believed from a preponderance of the evidence appellee failed to use that degree of care and caution in the operation of his vehicle that an ordinarily prudent person would exercise under the same or similar circumstances, in that he failed to keep a proper lookout, and failed to keep his vehicle under reasonable control, and that his failure to use such degree of care and caution proximately caused or contributed to appellant’s injury, then the verdict should be for appellant.

In Hatcher v. Daniels, supra, the plaintiff obtained similar instructions to those mentioned above. The Court held that there was a conflict between them and the assumption of risk instruction and that the plaintiff’s instructions did not cure the error of the assumption of risk instruction.

The verdict of the jury in the case sub judice was in the following words: “We, the jury, find for the defendant, Not Guilty of Negligence, Mr. James W. Whitten, Jr.”

Ordinarily, that part of the verdict following the word “defendant” would be treated as surplusage and the verdict would be reformed at the Bench to read, “We, the jury, find for the defendant.” However, the judgment recited the entire verdict verbatim, and the verdict and judgment indicate that the jury was not misled by the' assumption of risk Instruction D-3, but, on the other hand, followed and considered the instructions of the appellee, found that the appellee was not guilty of negligence and returned the verdict in his favor.

Under the facts and circumstances of this case, we think that all the instructions must be read and considered together, that the jury was not confused by any conflict in the instructions and that Instruction D-3 does not constitute reversible error. Also, we are of the opinion that the facts made an issue of liability for the jury and that the court did not err in refusing to grant appellant a peremptory instruction on that issue.

The judgment of the lower court is affirmed on direct appeal, and, since such affirmance disposes of the case, we do not address the cross-appeal, and dismiss same.

AFFIRMED ON DIRECT APPEAL; CROSS-APPEAL DISMISSED.

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


text:
    Johnny C. BLACK v. STATE of Mississippi.
    No. 53533.
    Supreme Court of Mississippi.
    May 12, 1982.
    Joe C. Griffin, Ackerman, for appellant,
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Choctaw County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.

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


text:
    Louis H. GREEN v. James C. GILLON & Betty Carolyn Gillon and North Central Savings & Loan Association.
    No. 53401.
    Supreme Court of Mississippi.
    May 12, 1982.
    Bailey & Bailey, H. Lee Bailey, Jr., Wino-na, for appellant.
    Donald Bond, Winona, for appellees.
   Appeal from Chancery Court, Montgomery County; Dennis M. Baker, Chancellor.

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

AFFIRMED ON DIRECT AND CROSS-APPEAL.

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


text:
    Betty Lee BRINSON v. Joseph Carl BRINSON.
    No. 53479.
    Supreme Court of Mississippi.
    May 12, 1982.
    Paul D. Snow, III, Jackson, for appellant.
    Rainer & Toney, John B. Toney, Brandon, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

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

AFFIRMED.


text:
    Samuel Lee MURRAY v. STATE of Mississippi.
    No. 53466.
    Supreme Court of Mississippi.
    May 12, 1982.
    Harry L. Kelley, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Yazoo County; Dan M. Lee, Judge.

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

AFFIRMED.

SUGGS and WALKER, P. JJ., and ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.

DAN M. LEE, J., takes no part.


text:
    In the Interest of G. H., a Minor, and In the Interest of S. C., a Minor.
    No. 53454.
    Supreme Court of Mississippi.
    May 12, 1982.
    Pack, Ratcliff & Ratcliff, David M. Rat-cliff, James Ronald Parrish, Laurel, for appellant.
    John L. Jeffries, Laurel, for appellee.
   Appeal from Youth Court, Jones County; Billy Joe Landrum, Youth Judge.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED AS TO BOTH MINORS.


text:
    In the Interest of R. C., a Minor, and In the Interest of B. W., a Minor.
    No. 53455.
    Supreme Court of Mississippi.
    May 12, 1982.
    J. Ronald Parrish, Laurel, for appellant.
   Appeal from Youth Court, Jones County; Billy Joe Landrum, Youth Court Judge.

John L. Jeffries, Laurel, for appellee.

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

AFFIRMED AS TO BOTH MINORS.


author: HAWKINS,’ Justice, for the Court:

text:
    Fred C. VINSON v. M. L. (Mac) McCARTY.
    No. 53178.
    Supreme Court of Mississippi.
    May 19, 1982.
    Carter & Davidson, Dudley H. Carter, Columbus, for appellant.
    Gholson, Hicks & Nichols, Aubrey E. Nichols, Columbus, for appellee.
    Before WALKER, BOWLING and HAWKINS, JJ.
   HAWKINS,’ Justice, for the Court:

Fred C. Vinson has appealed from a final decree of the Chancery Court of Lowndes County which dismissed his bill of complaint filed against M. L. (Mac) McCarty for payment of unpaid interest on a promissory note executed by McCarty to Vinson, and attorney fees.

The only issue we address on this appeal is whether payment by McCarty of the remaining balance due on a note from Vinson to the Merchants & Farmers Bank of Stark-ville extinguished or discharged the McCarty promissory note which had been assigned to the bank as collateral security for the Vinson note. We hold that it did not and reverse.

In 1977, Vinson, a resident of Oktibbeha County and an employee of Mississippi State University, enrolled in a real estate course being taught by McCarty, a Lowndes County resident and a licensed realtor, at the Golden Triangle Vo-Tech Center. During class, McCarty commented he could retire in five years by investing $30,000 in real estate. Intrigued, Vinson questioned McCarty following class, and was informed by McCarty that he had some property in mind if Vinson would put up the equity capital.

According to Vinson the agreement was that he would be repaid his investment plus interest, after which the two would divide the profits. McCarty testified they also agreed to split the losses, if any were sustained.

On October 10, 1977, Vinson invested $7,000 in a house and lot on Springdale Drive in Columbus. This property was sold January 23, 1978, which, after paying all costs (including a realtor’s commission to McCarty and interest at 9*A% to Vinson), resulted in a net profit of $2,441.20 to their joint venture. McCarty duly paid Vinson his share of the profit in this transaction.

On October 19, 1977, McCarty executed a promissory note to Vinson in the principal sum of $11,500 at 9%% interest, due four (4) months from date. The note provided for attorney fees in the event of default. To obtain the $11,500 it was necessary for Vinson to borrow it from the Merchants & Farmers Bank, which made a loan of $11,-500 to Vinson on October 20, 1977, evidenced by Vinson’s promissory note to the bank in this amount due February 20, 1978, and bearing interest initially at 9V2%. To secure his note, Vinson assigned and delivered the McCarty note to the bank as collateral.

Vinson wrote a check to McCarty or his realty firm for $11,500. McCarty then purchased a house and a lot in the Eastwood Hills subdivision in Lowndes County using the $11,500 to pay part or all of the equity of the sellers, and assumed a first deed of trust due First Federal Savings & Loan Association of Columbus against the property.

McCarty had not sold the property by February 20, 1978, and it was necessary for Vinson to extend his note to the bank. The bank extended the due date of the note to August 14, 1978, and increased the interest to 10%. The sagacious bank loan officer then advised Vinson to get some security for his note from McCarty. At Vinson’s request, McCarty executed a second deed of trust in favor of Vinson on the house and lot on February 16, 1978, and on March 28, 1978, Vinson assigned the deed of trust to the bank.

McCarty had not sold the property by August 14,1978, and the bank extended the due date to October 14, 1978. On August 25, 1978, McCarty sent a memo to the bank attaching a copy of the sales contract of the property and notifying the bank the prospective purchaser had made application for a loan at First Federal Savings & Loan Association, which was then being processed. The memo stated: “Mr. Fred Vinson is holding a second mortgage on property.”

No sale had been consummated by October 14, 1978, and the bank again extended the due date of the Vinson note to December 14, 1978.

On November 8, 1978, Mr. James E. Brown, Vinson’s attorney, wrote McCarty requesting payment on the note. McCarty returned Brown’s letter to him by mail with the following written notation on the bottom:

1. Thanks to you for your letter of consideration. My original intent was that Fred would only hold note for security in case of death. The money would not be due until the “Partnership” house was sold. (Just like we have done previously.)
2. I am making arrangements on this & will advise you shortly.
Thanks, Mac

On November 17, 1978, McCarty again sent a “speed message” handwritten memorandum to Mr. Brown stating the following:

Subject: Fred C. Vinson
Ed, I am making arrangements through the bank to go ahead and secure a loan to pay off the note.
I will keep you posted. I don’t need any additional expense on this transaction. Thanks, Mac

The same day, McCarty sent a handwritten memorandum to Mr. Jim Cook of the bank stating:

Mr. Cook,
Re: Vinson Loan
I’m sorry for any inconvenience on this note. I would appreciate your bearing with us a few more days.
I am making arrangements to pay you the note.
Thanks,
M. L. McCarty

On November 28, 1978 and again on December 6, 1978, McCarty wrote Mr. Brown stating that the loan was in progress and the application should be “finalized soon.”

The bank was not paid by December 14, 1978, and extended the due date to January 22, 1979.

McCarty learned that the bank had been assigned the second deed of trust from him to Vinson, and sometime in the latter part of December, or first part of January, 1979, requested of the bank the current debt, including interest, due the bank. He then paid the bank all outstanding balance due it, and the bank cancelled and satisfied the deed of trust of public record in the chancery clerk’s office in Lowndes County. The deed of trust was cancelled of public record on January 12, 1979. Upon payment by McCarty of the current balance, the bank reassigned the McCarty note to Vinson.

The sale of the property did not result in a profit, however, but a loss, contended by McCarty to be in the amount of $7,709.44.

On October 1, 1980, Vinson filed a bill of complaint against McCarty in the chancery court of Lowndes County charging that McCarty had paid the principal sum due on the note but no interest, and that McCarty owed $1,334.38 in interest. He also prayed for a decree for all interest due him under the note plus reasonable attorney’s fees as provided in the note.

McCarty filed an answer denying any indebtedness was owed to Vinson, and asserted affirmatively that Vinson had no interest or standing to sue, having previously assigned his note to the bank, and that the indebtedness had been discharged when the bank satisfied the deed of trust of public record.

McCarty also filed a cross-bill with his answer, alleging that the parties had engaged in a joint venture resulting in a loss of $7,709.44, and sought contribution from Vinson. The cross-bill alleges each party’s share in the loss was $3,854.72, and that crediting Vinson’s share of the loss with $1,301.49, the interest due on his note to the date of the sale, there remained due McCarty from Vinson the sum of $2,553.23. The cross-bill prayed for a monetary judgment from Vinson in this amount.

At the hearing before the chancellor, when the complainant Vinson had rested, McCarty made a motion to dismiss the bill of complaint which was sustained. The chancellor made the following statement:

Gentlemen, the motion will be sustained. When the assignment was given to M & F Bank, for whatever purpose, it became the property of M & F Bank; and when that note held by M & F Bank was satisfied, then the debt was extinguished as evidenced by the note.

The chancellor then heard the cross-bill, at which time McCarty and his bookkeeper testified. Following their testimony the court rendered an opinion that the parties had been engaged in a joint venture, but that there had been insufficient proof for him to make an adjudication.

On January 29,1981, the court rendered a final decree dismissing the bill of complaint for the reason Vinson “has no interest in the subject matter of the suit which was filed by him.” The chancellor further found the cross-complainant McCarty was not entitled to any relief, “for the reasons set forth in the court’s opinion,” and likewise dismissed the cross-bill.

Vinson appealed; McCarty filed no cross-appeal.

At the threshold, we do not believe the chancellor was manifestly wrong in holding the parties were engaged in a joint venture. We do not have before us, however, any cross-appeal resulting from the chancellor’s denial of relief under the cross-bill.

The only question before us is whether the chancellor erred in holding that McCarty extinguished the debt or note due Vinson by paying the bank the outstanding balance due it. In this holding the chancellor was mistaken.

There are three evidences of debt in this ease:

(1) McCarty’s promissory note to Vinson dated October 19, 1977, for $11,500 at 9l/2% interest, and due four months from date;
(2) Vinson’s promissory note to the Merchants & Farmers Bank dated October 20, 1977, for $11,500 at 9lk% interest, and due February 20, 1978; and
(3) Second deed of trust from McCarty in favor of Vinson on Eastwood Hills lot dated February 16, 1978, to secure McCarty promissory note to Vinson.

When Vinson secured his loan from the bank he assigned McCarty’s note to him to the bank. It was not a simple endorsement of a negotiable instrument, but an assignment on the reverse side in the following language:

I, Fred C. Vinson, for value received do hereby assign any and all interests in promissory note dated October 19,1977 to Merchants & Farmers Bank, Starkville, Mississippi.
(signed) Fred C. Vinson

When the bank was paid, it also on the reverse side of this same note assigned its interest to Vinson in the following language:

Merchants & Farmers Bank for value received hereby assigns any and all interest in promissory note dated October 19, 1977 to Fred C. Vinson.
Merchants & Farmers Bank
By: J. D. Cook, Jr.

That the assignment of the McCarty note to the bank was collateral security for Vinson’s note should be beyond dispute. The bank’s note refers to a note as collateral security. Mr. Cook, lending officer of the bank, testified that it was collateral. All interest payments made by Vinson and the final payment by McCarty were credited to the Vinson note. McCarty testified that at the time Vinson asked him to execute a second deed of trust on the property in favor of Vinson, the reason Vinson gave him for making this request was: “That his — the note was due that he had borrowed from the bank, and he needed to give them some collateral.” It would be difficult to even argue under the facts of this case that the bank could have held this note under any other circumstances than as collateral security.

The rights of these parties are determined by the Uniform Commercial Code.

Mississippi Code Annotated Section 75-3-201 provides:

(1) Transfer of an instrument vests in the transferee such rights as the transfer- or has therein ....
(2) A transfer of a security interest in an instrument vests the foregoing rights in the transferee to the extent of the interest transferred.

Section 75-9-207(1) provides:

A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the case of an instrument or chattel paper reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.

The Official Code Comment of the Uniform Commercial Code Section 3-201, Comment 5, reprinted in 2 Anderson, Uniform Commercial Code Section 3-201:1 (2d ed. 1971), states the following:

5. Subsection (2) restates original Section 27 and is intended to make it clear that a transfer of a limited interest in the instrument passes the rights of the trans-feror to the extent of the interest given. Thus a transferee for security acquires all such rights subject of course to the provisions of Article 9 (Secured Transactions).

And, further, the Official Code Comment of the Uniform Commercial Code Section 9-207, Comment 1, reprinted in 4 Anderson, Uniform Commercial Code Section 9-207:1 (2d ed. 1971), states:

1. Subsection (1) states the duty to preserve collateral imposed on a pledgee at common law. See Restatement of Security, §§ 17, 18 ....

This same authority states Section 9-207 reiterates the general rule that a pledgee must take steps to preserve the collateral, including, in the ease of commercial paper, the taking of steps necessary to enforce claims against primary parties. Anderson, supra, at Sections 9-207:3 and 9-207:4.

Sections 17 and 18 of the Restatement of the Law of Security state:

§ 17. PLEDGEE’S DUTY OF REASONABLE CARE.
The pledgee owes to the pledgor the duty of reasonable care of the pledged chattel except where the chattel is in the possession of a third person designated by the pledgor or is in the possession of the pledgor himself.
§ 18. PLEDGEE’S DUTY TO COLLECT INSTRUMENTS.
Where instruments representing claims of the pledgor against third persons are pledged, the pledgee has the duty of using reasonable diligence to preserve and collect the claims or to enable the pledgor to undertake such preservation and collection.

Restatement of Security §§ 17 and 18 (1941).

Section 9 — 207 of the Uniform Commercial Code preserves a well-established common law duty of a pledgee. Annot., 68 A.L.R.3d 657, 659-50 (1976), dealing with the duty of a pledgee under this section states:

§ 2. Background, summary, and comment
[a] Generally
In accordance with the general rule that in the absence of any agreement to the contrary, the holder of collateral security is bound to exercise ordinary diligence to preserve the validity and pecuniary value thereof, the view was strongly represented at common law, and approved by the Restatement of Security, that a pledgee who received instruments representing claims of the pledgor against third persons was under a duty to use reasonable diligence to preserve and collect the claims or to enable the pledgor to do so.
The Uniform Commercial Code purports to preserve the common-law rule as represented in the Restatement. It provides at § 9-207(1) that a secured party must use reasonable care in the custody and preservation of collateral in his possession, and that, in the case of an instrument or chattel paper, reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.

The cases of Dubman v. North Shore Bank, 85 Wis.2d 819, 822-23, 271 N.W.2d 148, 150 (1978) and Borden v. District of Columbia, 417 A.2d 402, 404, n. 6 (D.C.App.1980) hold U.C.C. Section 9-207 is essentially a restatement of the common law governing pledges.

This Court has long recognized this common law duty. Koelling v. Bank of Greenwood, 236 So.2d 371 (Miss.1970); Boswell v. Thigpen, 75 Miss. 308, 22 So. 823 (1897).

McCarty argues on his appeal that when he or his firm called the bank and asked for the payoff amount due on the note, following which he paid the bank, that this satisfied and discharged his note to Vinson. Such contention is untenable. In the first place, the endorsement or assignment was not unconditional, but rather a collateral security in the nature of a pledge. Secondly, there is no evidence that the bank ever represented to McCarty or in any way intended to or purported to satisfy the McCarty note to Vinson. Furthermore, there is no proof or contention by McCarty when the bank was paid that he thought he was paying the entire amount which he owed to Vinson. McCarty had made no payments to Vinson, and therefore, insofar as he was concerned, he knew $11,500 plus interest at the rate of 9V2% per annum from October 19,1977 was owed by him under his note. There is nothing to indicate from this record that McCarty, in making a “payoff,” thought or understood that he was paying the entire amount due and owing under his note to Vinson. Indeed, while the second deed of trust was satisfied of public record, neither McCarty’s note to Vinson, or even the bank’s note was marked “paid,” or was delivered to McCarty. Finally, the bank would have had no authority to satisfy the McCarty note upon payment to it of the balance due on the Vinson note to the bank. There was no merger of the two notes. The bank having no such authority, it would be anomalous indeed to hold McCarty, charged with knowledge of the facts of the loan from the bank to Vinson, or at least sufficient facts to put him on inquiry, could discharge his note to Vinson by paying the bank less money than he owed Vinson under his note.

In the case of Eckert v. Searcy, et al., 114 Miss. 150, 74 So. 818 (1917), Mrs. Eckert held some promissory notes executed to her by Lewis. Mrs. Eckert endorsed and delivered to Searcy three of the notes in the principal amount of $100 each as collateral security for a $98.70 debt Mrs. Eckert owed Searcy. Thereafter, Searcy sold the notes back to Lewis for $125.00 and marked each of them paid. Mrs. Eckert sued both Sear-cy and Lewis. This Court stated:

... If the transaction was a pledge of the notes as collateral security, then there can be no question as to the liability of the appellee Searcy to account to Mrs. Eckert for their wrongful disposition. Second, if the transaction was a pledge, as security, and Lewis, appellee, the maker of the notes had notice of, or was put upon inquiry, as to the fact that his notes were being held as a pledge of collateral security by Searcy, and he knew, or should have known, that Searcy had no right to dispose of the notes at such a great sacrifice and in such manner and without notice, and knowing this when he purchased, or pretended to purchase, the notes from Searcy for one hundred and twenty-five dollars, his own notes, which were worth three hundred dollars and thus participating in the wrong, did Lewis become a trustee “in invitum” and accountable to the appellant, Mrs. Eckert, for the amount called for by the three notes of one hundred dollars each executed by him, less the debt due by the appellant, Mrs. Eckert, to the appellee R. J. Searcy, which was ninety-eight dollars and seventy cents?
* Sfc * * He *
A court of equity will grant relief to the pledgor, whose securities he has pledged as collateral and which have been wrongfully sacrificed or compromised with the maker to his injury and damage. Equity will not enforce a forfeiture, but will relieve against it. Pomeroy’s Eq. Jur. (3d Ed.) vol. 1, section 433.
He sf: He He He »jc
. . . the act of a creditor holding amply secured notes of his debtor as collateral, in accepting a less sum than the amount due thereon from a solvent maker in full satisfaction thereof, does not preclude the latter from recovering the balance due from the maker.

Id. at 159-61, 74 So. at 819-20. This Court concluded, after holding both Lewis and Searcy liable:

. . . The appellee Searcy is entitled to satisfaction of his indebtedness of ninety-eight dollars and seventy cents; the appellant, Mrs. Eckert, is entitled to the amount represented by the three one hundred dollar notes, less the ninety-eight dollars and seventy cents due to Sarcy [sic]; and appellees should pay to the appellant, Mrs. Eckert, the amount of the three notes, less the ninety-eight dollars and seventy cents due to Searcy....

Id. at 164, 74 So.2d at 820.

In the case of Love v. Rogers, 168 Miss. 1, 150 So. 815 (1933), Rogers executed two notes to the Bank of Shelby, which pledged the notes to a Memphis Bank as collateral security. Thereafter, Rogers, upon learning the Memphis bank had the notes and under circumstances as to put him on notice that they were held by the Memphis bank as collateral security, went to Memphis and paid the Memphis bank less than was due under the notes. The two notes were marked “paid” and delivered to Rogers. In holding the action of the Memphis bank did not satisfy the notes, this Court stated:

... A pledgee of commercial paper is a trustee for the pledgor, and, unless expressly authorized so to do, cannot discount that paper at less than its face value, or transfer it for a compromise amount to any person with notice or the equivalent thereof; and the burden of proof to show the authority of the pledgee rests upon him who asserts the validity of the pledgee’s action in so disposing of the paper at less than its face value. Eckert v. Searcy, 114 Miss. 150, 74 So. 818.

Id. at 7, 150 So. at 815.

This Court then concluded that since there was no proof offered the Memphis bank held such authority, the notes were not discharged.

When Vinson assigned the McCarty note to the bank as collateral security, reciprocal obligations arose. Vinson had no right to compromise or settle the note from McCarty, or take any action to diminish the bank’s interest therein to the full extent of Vinson’s indebtedness to the bank, and the bank’s title thereto to the extent of such debt due it by Vinson was paramount. See International Harvester Co. v. People’s Bank & Trust Co., 402 So.2d 856 (Miss.1981). On the other hand, the bank’s sole interest in the McCarty note was as security for the debt owed it by Vinson. Upon being paid, the bank returned the McCarty note to Vinson as it was obligated to do. The note remained valid and outstanding, with McCarty being entitled to credit thereon for all money he paid the bank in this transaction.

Since the McCarty note provides for a reasonable sum as attorney’s fee, this case is remanded for a determination by the chancellor of the current balance due thereon, and upon proof, of a reasonable attorney’s fee, and decree accordingly in favor of Vinson.

Reversed and remanded for hearing consistent with this opinion.

REVERSED AND REMANDED.

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

      . The face of the Vinson note to the bank shows it to be secured and following the word “collateral” are typed the following words:
      “Assignment of note and additional on other notes outstanding.”

      . On the reverse side of the promissory note from Vinson to the bank, under the heading “Payments on Interest,” “Date Paid,” and “Interest Paid,” are the following credits on the note:
      2/16/78 — $358.10
      5/28/78 — $665.56
      11/9/78 — $128.70
      12/22/78 — $135.33
      This constituted a total payment of $1,287.69 in interest on the bank’s note.

      . Dollar v. Land, 184 F.2d 245 (D.C.Cir.1950) cert. denied 340 U.S. 884, 71 S.Ct. 198, 95 L.Ed. 641; 68 Am.Jur.2d Secured Transactions § 50 at 878 (1973).

      . While McCarty testified he learned in December, 1978, his deed of trust to Vinson had been assigned to the bank, the record is silent as to what McCarty thought or understood relative to his personal note to Vinson. If he thought his note to Vinson had not been assigned to the bank, then he obviously knew when he paid the bank he was not paying his note to Vinson. On the other hand, if he understood his note to Vinson had been assigned to the bank, it was as collateral security.


author: DARDEN, Justice,

text:
    Danny GOSS v. STATE of Mississippi.
    No. 53432.
    Supreme Court of Mississippi.
    May 19, 1982.
    William Sebastian Moore, Hugh W. Ted-der, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, C. J., and BROOM and DARDEN, JJ.
   DARDEN, Justice,

for the Court:

Danny Goss was convicted on a charge of rape in the Circuit Court of Lauderdale County. The jury could not agree on a sentence and he was sentenced thereafter by the trial judge to a term of twenty-five years in the Mississippi Department of Corrections. We affirm.

This case involves the question of the identity of the person who committed the offense. There is no question that the proof shows that the prosecutrix was forcibly ravished as a result of being put in fear of immediate bodily harm to herself and to her children, who were asleep in her apartment at the time the incident occurred. The defense is that the defendant is not the person who committed the assault. He undertook to establish an alibi for the time when the incident occurred.

The prosecutrix testified that she knew the defendant; that he came into her apartment without permission and that she saw him at the time that he entered. He put his hand over her eyes and mouth as he entered and shoved her onto the couch. In the course of the assault he covered her face with a shirt, which at one time slipped down permitting her again to see him, and later when he removed his shirt from her face he covered her face with a cushion and instructed her not to move. During all of this time he was threatening her and her children with bodily harm in the event that she made any noise or resisted him.

The prosecutrix specifically identified the defendant as being the person who committed the assault upon her. She described his clothing as being a brown velour shirt, blue jeans and brown zip-up boots. She specifically stated that he zipped up the boots after he had committed the offense. The two detectives who investigated the matter on the day after the assault occurred testified that they interviewed Debbie Switzer, who was Danny Goss’ sister and that she told them that on the night in question Danny was wearing a brown velour shirt, blue jeans and zip-up boots. She denied having said so to them but their testimony is positive in this respect. This is the only corroboration of prosecutrix’s identification of defendant.

The victim called her friend and her fian-cé as soon as her assailant left and she was able to lock the door and be assured that he was not any longer in the area. The police were notified by the fiancé on his arrival at the apartment. She was examined by a physician within about two hours after the assault occurred and he established the fact that she had motile semen in the vagina. She named the defendant as the person who had committed the assault upon her on the night that it occurred and she identified his picture from a group of pictures that were presented to her by police officers in the early morning hours of that day.

During the course of the trial the defendant undertook to put two witnesses on the stand, both of whom had been in the courtroom for a period of time during certain of the testimony of other witnesses. The rule as to the sequestration of the witnesses had been invoked and the court on the objection of the state refused to permit either of the two proffered witnesses to testify. Their testimony was taken outside the hearing of the jury and is a matter of record.

On appeal the defendant assigns three errors as a basis for the requested reversal of the case. The first is that the court incorrectly instructed the jury as to the weight to be given the uncorroborated testimony of the prosecutrix and how to view such testimony.

As a part of the court’s instruction the jury was told: “You are required and expected to use your good common sense and sound, honest judgment in considering and weighing the testimony of each witness who has testified in this case.” No objection was made to any portion of the court’s instruction which included the above direction to the jury as is required by section 3.09 of the Uniform Circuit Court Rules. Therefore, we will not consider any objection to that instruction on appeal. Mississippi Supreme Court Rule 42; DePriest v. State, 377 So.2d 615 (Miss.1979).

The defendant correctly states the rule of law which has been repeatedly announced by this Court that the uncorroborated testimony of a prosecutrix in a rape case should be examined closely and scrutinized with caution. See for example Killingsworth v. State, 374 So.2d 221 (Miss.1979). Defendant now says that the court should have told the jury that they should scrutinize the prosecutrix’s statement with extreme caution in accordance with that rule. No instruction announcing such a rule was requested by the defendant in the lower court. Assuming for the purpose of our consideration here that the testimony of the prosecutrix was without corroboration in any respect it would still have been improper for the court to have instructed the jury in regard to the weight to be given such testimony for the reason that Mississippi Code Annotated section 99-17-35 (1972) prohibits a judge from commenting upon the weight of the evidence and we have held that an instruction which cautions the jury not to give undue weight to the testimony of a particular witness constitutes such a comment. See Stewart v. State, 355 So.2d 94 (Miss.1978). We therefore hold that the first assignment of error is without merit.

The defendant next complains that the trial judge abused his discretion in refusing to permit the testimony of two witnesses who were present during a portion of the testimony of other witnesses after the rule for sequestration of the witnesses had been invoked. One of the characteristics that the prosecutrix testified identified the assailant was the fact that he lisped. Both of the witnesses whose testimony was riot heard by the jury said that the defendant did not and never had lisped. There was other testimony to that effect by several witnesses and, in addition to that, the defendant took the stand himself and the jury could obviously make a determination of its own from his language in response to questions asked whether he had any sort of speech impediment. It appears, therefore, that the testimony of the two witnesses in that respect was merely cumulative.

One of those witnesses whose testimony was not heard by the jury testified to the effect that she was engaged to the defendant at the time of the assault on the prose-cutrix and that their relationship was a very close, indeed, an intimate one. The defendant had testified to that effect and others had testified that they had seen the defendant with the witness on occasions. Therefore, it appears that this testimony, too, was cumulative.

Rule 5.09 of the Uniform Criminal Rules of Circuit Court Practice which provides for the sequestration of witnesses upon the request of either party says, in part:

Whether a witness may testify when he has remained in the courtroom after the rule [of sequestration] has been invoked is within the discretion of the trial judge.

This is the same rule that was in effect before the adoption of the Uniform Criminal Rules just quoted. In Ford v. State, 227 So.2d 454 (Miss.1969), the Court said:

The question of whether the court will permit a witness to testify who has violated the rule excluding witnesses is in the court’s sound discretion. However, it should be pointed out that the wiser and more just rule to follow is not to exclude the testimony altogether but to admit it with such remarks by the court as may be appropriate. Especially is this true in criminal cases. In the present case we cannot say that the trial court abused its discretion in refusing to allow this witness to testify. The testimony proposed to be given by this witness was cumulative. (227 So.2d at 457).

We think that the trial court in this case would have been well advised to have permitted the testimony of a defendant’s fian-cé with such remarks as the court might find appropriate, but we are not in a position to say that this was such an abuse of discretion on the part of the trial court as justifies a reversal of the case.

The third assignment of error is that the verdict of the jury was against the overwhelming weight of the evidence and was unsupported by the evidence. This assignment of error, in effect, complains that the trial judge erred in overruling the motion for a judgment notwithstanding the verdict or in the alternative for a new trial.

The prosecutrix in this case positively and unequivocally identified the defendant as the person who had committed the assault upon her. She was subjected to a very rigorous and extensive cross-examination by defense counsel and although there were some inconsistencies between statements attributed to her prior to the trial and the testimony at the trial she consistently throughout the whole proceedings maintained that it was the defendant who had committed the assault upon her. Her actions were consistent with the actions and reactions of a female who has been raped.

The jury also had the alibi defense of the defendant. His two principal corroborating witnesses being his mother and his sister, who placed him at a point some distance from the prosecutrix’s apartment complex at the time that the assault occurred. Another witness placed him at a party some time before the time of the assault.

The jury was fairly and adequately instructed in reference to the law in regard to this case. It saw the witnesses and heard the conflicting testimony elicited from them, and made a determination that the defendant was guilty and the proof justified that verdict. There was no error committed by the trial court in denying the motion for a new trial or for a judgment notwithstanding the verdict.

The case is therefore affirmed.

AFFIRMED.

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


text:
    David Allen PATTERSON v. STATE of Mississippi.
    No. 53465.
    Supreme Court of Mississippi.
    May 19, 1982.

      Jeffrey Jones, Memphis, Tenn., James H. Mathis, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and DARDEN, JJ.
   DARDEN, Justice,

for the Court:

The defendant was indicted for three burglaries and the cases were tried together. The Circuit Court of DeSoto County directed a verdict of not guilty in one of the cases. From a conviction on the remaining two charges and consecutive sentences of five years the defendant appealed. We affirm.

On a report that a person had backed a car into the carport of a house in northwestern DeSoto County and peeped in a window of the house, Deputy Sheriff Ward obtained a description of the person, the car, and its Tennessee license plate numbers. The car and, in general, the person matched the description of a car and person seen in the neighborhood where some forty burglaries of residences had recently been committed. Other officers were alerted by Ward and another sheriff’s patrol car spotted the car and signaled with blinking light and siren for it to stop. It proved to be the defendant, who stopped, but as the officers got out of the car to approach his vehicle from the rear, he drove off at an excessively rapid speed.

The officers gave chase for two or more miles, the defendant exceeding the speed limit and running one or more stop signs and finally running his car into a ditch. As defendant crawled out of his wrecked ear, Regular Deputy Quarrels and Reserve Deputy Robb placed him under arrest for traffic violations, searched him for weapons, handcuffed him and Quarrels advised him of his Miranda rights. Defendant voluntarily stated that he was on narcotics and had broken into some houses that morning.

There was a pistol, holster and cartridges on the front seat and another pistol on the floorboard, all in plain view through the open front door of the car. When Deputy Ward and Réserve Deputy Looney arrived, defendant was in the back seat of Quarrels’ patrol car, handcuffed. Ward testified that when he arrived that he gave Patterson his Miranda rights and that Patterson voluntarily told him he was on narcotics and had burglarized three houses that morning. He offered to show Deputy Ward the houses. Later Regular Deputy Madden, who had heard the radio report of the chase and wreck, arrived at the scene.

A wrecker was called and Ward ordered a search of the car trunk and an inventory of the contents, which Madden made out. There was a conflict in the testimony of the several officers at the hearing of a motion to suppress the physical evidence resulting from that search as to whether Ward talked to the defendant prior to the search of his car trunk.

Quarrels and Robb transported defendant from the scene of the wreck to jail and on the way there, he again said he was on narcotics and had been told there were some easy touches to be made down in DeSoto County breaking into houses. He said he wanted to make a deal. No promises were made to him and no threats or coercive conduct used to induce him to make the statement.

When Ward came into the jail defendant said he wanted to cooperate, that he was on narcotics and wanted to clear things up and would go and show the officers the three houses he had broken into that morning. They drove to two of the houses which had doors forced open or broken, and which defendant identified as having been burglarized by him. He could not remember the location of the third house and it was not until a later report of burglary by the owner that it was identified.

A motion to suppress evidence in regard to the contents of the car trunk opened at the wreck was sustained. The court held there was ample opportunity for the officers to obtain a search warrant for the car trunk and absent that the physical evidence resulting from the search could not be elicited.

For purposes of our discussion of defendant’s rights against self-incrimination, we assume here that the search was illegal and in violation of rights secured by Section 23 of our Constitution and the Fourth Amendment to the United States Constitution.

In indulging such an assumption, we refer to the search as illegal, but we do not here pass upon the reasonableness of the search of the car trunk, or the validity of the trial court’s ruling excluding the evidence resulting from such search. We have held that a search made in connection with an inventory where a car is impounded by police is a reasonable one, within the meaning of Section 23 and the Fourth Amendment. See, for example, Gordon v. State, 222 So.2d 141 (Miss.1969); Jackson v. State, 243 So.2d 396 (Miss.1970) and Florence v. State, 397 So.2d 1105 (Miss.1981). Also of interest in connection with warrantless searches of motor vehicles are Horton v. State, 408 So.2d 1197 (Miss.1982); Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

On the trial there was ample proof of the corpus delicti, but strenuous objection by able counsel was interposed to testimony in regard to the confession of burglary and the identification by defendant of the two houses broken into. The basis of the objection was that the confession was the poisoned fruit of the illegal search of defendant’s car trunk. The trial court held that the confession and identification of the houses were voluntary untainted.

The appeal presents the question of whether the trial court was in error in holding that the incriminating statements of defendant were not triggered or induced by the illegal search.

In his appeal the defendant undertakes to rely upon the principles announced in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and its progeny.

There was no question raised and no valid basis for questioning the arrest of defendant. The pistol, cartridges and holster were in plain view of the officers in defendant’s car. Any information obtained by means of the eye where no trespass has been committed in aid thereof is not illegally obtained. Goodman v. State, 158 Miss. 269, 130 So. 285 (1930). See, also, a discussion of the plain view doctrine in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The pistol and holster were later shown to have been taken from one of the two burglarized homes defendant pointed out to Ward. No illegality in respect to this item occurred.

We have held that a confession obtained by confrontation of an accused with articles indicating the commission of a crime obtained as a result of an illegal search renders the contemporaneous confession inadmissible. Likewise, where the confession comes so closely in time subsequent to the confrontation that the lapse has not attenuated the taint of illegality, proof of the confession may not be given. The reasoning is that violation of Fourth Amendment rights and those protected by section 23 of our Constitution destroys the voluntary nature of a confession made after an accused is presented with the results of that violation. Hence, such a confession, whether in words or incriminatory actions, if adduced over objection, amounts, in effect, to a deprivation of rights against self-incrimination afforded by the Fifth Amendment and section 26 of our Constitution. Thompson v. State, 206 So.2d 195 (Miss.1968), Vanderlin v. State, 267 So.2d 311 (Miss.1972). These cases follow Wong Sun, supra.

In the case sub judice, however, both Quarrels and Ward, in evidence given at hearing on the motion to suppress and again at trial, testified to a free and voluntary confession by defendant before the search of the car trunk occurred. It follows that the confession and offer of the defendant to show Ward the three houses he had broken into was unrelated to and completely free of any taint of the illegality of the subsequent search.

In Dunning v. State, 251 Miss. 766, 171 So.2d 315 (1965), cert. den., 386 U.S. 993, 87 S.Ct. 1310, 18 L.Ed.2d 339 (1967), we held that even assuming action by the state in delaying Dunning’s committal hearing, constitutes an illegal act, the delay did not render a prior confession inadmissible, the court saying:

Assuming this delay to be unreasonable, the illegal delay would not be retroactive so as to vitiate the legal evidence theretofore obtained. [251 Miss, at 778—779, 171 So.2d at 320].

We hold that the illegal search in this case did not relate back so as to invalidate the confession already made.

This leaves only the question of whether the action of defendant in pointing out two of the three houses burglarized after the illegal search was so much a result of the search as to be tainted and therefore inadmissible.

Appellant cites Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and correctly quotes from it as follows:

‘We need not hold that all evidence is “fruits of the poisonous tree” simply because it would not have come to light but for the actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”. . .’ [Wong Sun v. United States, supra] at 487—488, 9 L.Ed.2d 441, 83 S.Ct. 266 [417]. [422 U.S. at 599, 95 S.Ct. at 2259, 45 L.Ed.2d at 424].

See also United States v. Brookins, 614 F.2d 1037 (5th Cir.1980).

In Brown, the Court further said:

The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. (Emphasis added) [422 U.S. at 603, 95 S.Ct. at 2261, 45 L.Ed.2d at 427],

Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), enlarges on Brown and sets out certain criteria to be considered in the application of the so-called Wong Sun rule in determining whether incriminating statements were obtained by exploitation of an illegal act:

1. Miranda warning (important but not dispositive).

2. Temporal proximity of illegal act and confession.

3. Whether any circumstances intervened between the illegal act and the challenged statement.

4. Consideration of the “purpose and flagrancy of the official misconduct.”

5. Voluntariness of the confessions.

Applying the Rawlings test to the case at bar we find:

1. Miranda warnings were given by both Quarrels and Ward prior to any incriminating statements or action by defendant.

2. The initial confessions came before the search. About an hour elapsed between the search and defendant’s statements to Ward at the sheriff’s office and his trip to show the houses. This, if it stood alone might possibly be an insufficient time for any evil effects to be dissipated.

In Thompson, supra, defendant was unlawfully arrested and jailed within less than an hour after an illegal search. While still in custody in jail she confessed the next day, and the confession was held inadmissible. Here, of course, there was no question of illegal arrest where there was probable cause to suspect the commission of a felony and the commission of misdemeanors consisting of traffic law violations in the presence of the arresting officers.

In Vanderlin, supra, there is no statement in the reported facts as to the length of time elapsing between the illegal search and the admission of guilt.

In his brief, appellant states that Wong Sun and United States v. Scios, 590 F.2d 956 (D.C.Cir.1978), suggest that a per se rule may be the most workable solution, that is, that an incriminating statement made at the scene of an illegal search will always be held to be the fruit of coercion.

To the contrary, the per se rule referred to in Scios was a proposal that all live witness testimony would be admissible, regardless of whether obtained as a result of illegality. Commenting on United States v. Ceccoline, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), the Court in Scios said:

Justice Rehnquist, for the Court, found that the taint of the illegal search by the officer had been sufficiently attenuated to permit introduction of the testimony. The Court rejected the notion that the exclusionary rule was subject to a per se exception that rendered all live witness testimony admissible, regardless of whether obtained as a consequence of illegality. Instead, the particular features of a case must be examined to balance the benefits of the exclusionary rule, with its deterrent purpose, against the costs. [590 F.2d at 962].

Here the initial confessions were made before the search of the car trunk, and the subsequent statements were away from the scene of the search. Additionally, such an inflexible rule would prevent us from considering the several elements set out in Rawlings.

The defendant had ample opportunity to reflect and to remain silent or refuse to show the houses burglarized before his second discussion with Deputy Ward. He chose, voluntarily, to try to make a deal or induce leniency by cooperation with the officers, and we hold that the time element, in these circumstances, is not of significant help in determining the coercive effect of the illegal search.

3. Here there was the intervention of the trip from the scene of the search to the jail, the booking procedures, defendant’s concern about his jacket which he had temporarily misplaced, and his reiteration of his statement to Ward, who arrived later than defendant at the jail, that he wanted to clear things up by pointing out the houses.

• 4. While the search of the car may have been in violation of defendant’s Fourth Amendment rights, its purpose could not be said to be a flagrantly willful act designed to incriminate defendant. The officers were already aware of the pistol which they later learned had been recently stolen. Testimony by one officer showed that when officers called a wrecker to tow away a disabled vehicle they made a report showing the physical condition of the vehicle and an inventory of its contents so that responsibility could be fixed for any further damage or the loss of any personal property. Such a report and inventory was made here as a part of the officer’s standard procedure, including the inventory of the contents of the car trunk.

5. There would seem to be no question that the confessions, aside from the illegal search, were voluntary.

We conclude, therefore, in the language of Brown, supra, that the evidence of the confessions and the actions of defendant in showing the two burglarized houses involved in these cases came about, not by exploitation of any illegality, but by means sufficiently distinguishable to be purged of any taint. We, therefore, affirm the convictions and sentences.

AFFIRMED.

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


author: DAN M. LEE, Justice,

text:
    Hoyle Lee MILLER v. STATE of Mississippi.
    No. 53184.
    Supreme Court of Mississippi.
    May 19, 1982.
    Charles R. Brett, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Prentiss County wherein Hoyle Lee Miller, defendant/appellant, was indicted, tried and convicted for false pretenses by delivery of a bad check. Upon conviction, Miller was sentenced to serve three years in the Mississippi Department of Corrections and fined $1000. We reverse.

In April 1979 appellant contacted Doyle Jackson of Jacobs Furniture Manufacturing, Inc., regarding a purchase of furniture. Jackson agreed to sell appellant ten 3-piece suites of furniture for $3,042.50. Jackson prepared an invoice after this phone call which bore the date of April 18, 1979.

Appellant, his girl friend, and truck driver arrived at Jacobs Furniture on Monday, April 23, 1979 (or April 11, 1979, according to appellant), to take delivery of the furniture. While the furniture was being loaded onto appellant’s truck, appellant gave Jackson a check dated April 23, 1979, for $3,077.50. Jackson agreed to hold appellant’s check for three days, whereupon appellant, or his truck driver, would return with cash and pick up the check. Appellant, according to Jackson, never indicated the check was not good. Otherwise, he would not have loaded the furniture onto appellant’s truck. When Jackson tried to cash the check on May 4, 1979, there were insufficient funds in appellant’s account to cover the same.

Appellant, his wife and appellant’s truck driver, testified that they took delivery of the furniture from Jackson Furniture on April 11, 1979. Appellant and his wife also asserted that Jackson understood that appellant had insufficient funds to cover the check and further agreed to hold the same until appellant returned from Wichita Falls, Texas, with cash money from the sale of the furniture. Appellant and his witnesses also asserted they picked up only seven suites of furniture instead of the ten suites that were ordered. Appellant and his witnesses also sought to establish his presence in Wichita Falls, Texas, on April 23, 1979.

The jury returned a verdict of guilty as charged, whereupon appellant was sentenced to three years in the Mississippi Department of Corrections and fined $1000.

Did the trial court err in overruling appellant’s request for peremptory instruction?

Before a conviction can be had on a charge of false pretenses by delivery of a bad check, it is incumbent on the state to prove that a seller parts with something of value on the belief that the check is good at that particular time. Hindman v. State, 378 So.2d 663 (Miss.1980); Pollard v. State, 244 So.2d 729 (Miss.1971); Kitchens v. Barlow, 250 Miss. 121, 164 So.2d 745 (1964); Broadus v. State, 205 Miss. 147, 38 So.2d 692 (1949); Grenada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743 (1934); and Odum v. Tally, 160 Miss. 797, 134 So. 163 (1931).

In viewing the evidence on request for a peremptory instruction, we must consider as true all the evidence offered by the state, together with reasonable inferences, and if that evidence will support a verdict of guilty, the question is for the jury to determine. Goldman v. State, 406 So.2d 816 (Miss.1981). The state’s evidence in the case sub judiee established that Jackson agreed to hold appellant’s check for three days whereupon appellant’s truck driver would return with cash money and pick up the check. Jackson, therefore, did not part with his merchandise on the belief that the check was presently good. The evidence established nothing more than a pure and simple credit transaction. Appellant’s request for a peremptory instruction should have been granted.

Since the evidence failed to establish the crime for which appellant was charged, the cause is reversed and appellant is hereby discharged.

REVERSED AND APPELLANT DISCHARGED.

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


text:
    Anthony Henry HYDE v. STATE of Mississippi.
    No. 53424.
    Supreme Court of Mississippi.
    May 19, 1982.

      Richard W. Hamilton, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Jackson County wherein Anthony Henry Hyde, defendant/appellant, was indicted, tried and convicted upon a charge of rape. Upon conviction, Hyde was sentenced to a term of twenty-five years in the Mississippi Department of Corrections after the jury failed to affix his punishment at life. We affirm.

On October 23, 1980, appellant and his brother Michael Hyde, drove to 4027 West Pine Street in Moss Point, Mississippi, between 10:00 and 10:30 a. m. According to appellant and his brother, the purpose of this visit was to purchase marijuana from Elliot Lett, the occupant of the house, so appellant would have something to smoke during a bus ride to Chicago.

Appellant parked his automobile in Lett’s front yard and then proceeded to the door. The prosecutrix, Lett’s 17-year-old live-in companion, answered the door and informed appellant Lett was at school and would not be home until 12:00 p.m. Appellant then left.

Appellant returned to Lett’s house alone approximately one hour later. When the prosecutrix told appellant Lett had not returned home, appellant forced his way into the house, wielding a gun. He began ransacking the house asking the prosecutrix where Lett kept his dope. When appellant was unable to find any drugs, he grabbed the prosecutrix. After a brief struggle, the appellant forced himself upon the prosecu-trix and raped her.

When Lett arrived home, he found his house in shambles and the prosecutrix crying in the bedroom. Lett took her to his grandmother’s house, which was next door, where she bathed, and the police were summoned.

The prosecutrix identified appellant from nine photographs as the person who raped her. An examination at the Singing River Hospital that afternoon revealed that she had recently engaged in sexual intercourse. Hair samples taken from the appellant and the prosecutrix’s clothing were compared in the F.B.I. laboratory. All twenty individual characteristics identified in appellant’s hair matched the characteristics of the hair taken from the victim’s clothing.

Appellant voluntarily surrendered to the police on November 11, 1980, shortly after returning from Chicago. He denied that it was he who raped the prosecutrix.

I. Was the verdict of the jury against the overwhelming weight of the evidence?

In Sadler v. State, 407 So.2d 95 (Miss.1981), this Court stated:

Among the alleged errors assigned is that the trial court should have sustained Sadler’s motion for a new trial on the ground that the jury verdict was not supported by sufficient credible evidence.
Considering the evidence, as we must, in the light most favorable to the state and accepting as true the evidence supporting or tending to support the verdict, with all inferences supportive of the verdict that reasonably may be drawn therefrom, we find no merit in this contention. Glass v. State, 278 So.2d 384 (Miss.1973). In Spikes v. State, 302 So.2d 250 (Miss.1974), this Court said:
“On appeal, in this situation, in passing upon the sufficiency of evidence to support a verdict, this Court must accept as true the evidence which supports the verdict. Murphree v. State, 228 So.2d 599 (Miss.1969). [302 So.2d at 251].”
The resolution of such conflicts as there were in the evidence in this case, was peculiarly for the jury. In Hankins v. State, 288 So.2d 866 (Miss.1974), it was said:
“In Evans v. State, 159 Miss. 561, 132 So. 563 (1931), we stated:
‘We invite the attention of the bar to the fact that we do not reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of the jury. (159 Miss, at 566, 132 So. at 564)’ ” (407 So.2d at 97)

The evidence in the case at bar was conflicting. The state’s evidence tended to prove that appellant committed the rape, while he denied he committed the offense. The testimony of the prosecutrix was corroborated by the testimony of Vicki Lowery who saw appellant at Lett’s house on two occasions on the day the rape occurred, and also by Elliot Lett, Kenneth Smith and detective Gary Jones’ testimony as to the condition of the house following the rape. The prosecutrix positively identified appellant as” her attacker. The rape examination revealed scratches and scrapes around the prosecutrix’s neck as well as evidence of recent sexual intercourse. Moreover, hair samples taken from the prosecutrix’s clothes compared remarkably with hair samples taken from appellant’s head.

The conflict in the evidence was for the jury’s resolution. The evidence was more than sufficient to support the verdict of the jury.

II. Did the trial court err in failing to grant a mistrial when the district attorney caused appellant to display the condition of his teeth to the jury?

Appellant, during cross-examination, was asked by the district attorney to step down from the witness stand and display the condition of his teeth to the jury. On appeal, he argues the effect of this action was to bolster the state’s case and prejudiced the jury against him due to the fact that there was no evidence before the jury as to the condition of the assailant’s teeth.

In King v. State, 230 So.2d 209 (Miss.1970), which involved felonious possession of narcotic drugs, defendant, after taking the witness stand, was compelled to exhibit his arm to the jury, showing festered bumps on his arm. We stated:

We are of the opinion that the defendant was not prejudiced by being required to exhibit his arm to the jury while he was on the witness stand testifying in his own defense. The appellant voluntarily took the witness stand and, being a witness, he was required to answer questions on cross examination related to the issue. McCormick on Evidence § 131, page 274 (1954); 8 Wigmore on Evidence § 2265 (McNaughton rev. 1961), page 386; Tyson v. State, 237 Miss. 149, 112 So.2d 563 (1959); People v. Widener, 220 Cal.App.2d 826, 34 Cal.Rptr. 130 (1963). (230 So.2d at 211-12).

Appellant having voluntarily taken the witness stand in his own defense was not prejudiced by being required to exhibit the condition of his teeth to the jury.

Based on the foregoing, this case is affirmed.

AFFIRMED.

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


text:
    CITY OF JACKSON, Mississippi v. Robert V. GILL.
    No. 53531.
    Supreme Court of Mississippi.
    May 19, 1982.
    David L. Love, Jackson, for appellant.
    Daniel, Coker, Horton & Bell, Donald V. Burch, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    Gaylom WALKER v. STATE of Mississippi.
    No. 53087.
    Supreme Court of Mississippi.
    May 19, 1982.
    Blackmon, Smith & Nichols, Edward Blackmon, Jr., Canton, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Yazoo County; Kelly Collins, Special Judge.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.