author: HUGHES, Judge.

text:
    Donna Marie Jones BREEN v. EISWORTH-TALBERT, INCORPORATED, Charlie J. Talbert, Jr., and Liberty Mutual Insurance Company.
    No. 11750.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 1981.
    Rehearing Denied Dec. 18, 1981.
    Lawrence A. Milly, New Orleans, for plaintiff-appellee.
    Borrello & Huber, Bruce J. Borrello, Me-tairie, for defendant-appellants.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   HUGHES, Judge.

The defendant, Dr. Charles J. Talbert, Jr., and his insuror, the Liberty Mutual Insurance Company, here appeal from a judgment which condemned them to pay to plaintiff-appellee, Donna Breen, the sum of $10,000. and an additional $564.80 to an intervenor, the Charity Hospital of Louisiana. The litigation arises out of an automobile-pedestrian collision at a major intersection in the City of New Orleans. The trial judge found the defendant driver, Dr. Talbert, to be negligent and the proximate cause of plaintiff’s injuries. The defendant driver and his insuror appealed and we affirm.

The only issue before us is whether or not the trial court was in error in finding the defendant driver to be negligent and the cause of plaintiff’s injuries.

The accident occurred on February 17, 1977 at the intersection of South Carrollton and South Claiborne Avenues in the City of New Orleans. Dr. Talbert was driving toward New Orleans from Jefferson Parish crossing Carrollton when the accident occurred. Mrs. Breen has been on the neutral ground of Claiborne Avenue when she attempted to traverse the downtown bound lanes. She was headed in the direction of the river. Shortly before the accident it had been raining and the streets were still wet but it was a clear night and the intersection offered an unobstructed view for motorists attempting to traverse the intersection. The area was well lit and traffic was controlled by electric signal lights.

The defendant and his wife, who was a passenger in his automobile when the accident occurred, both contended that the plaintiff simply ran or fell into their car. They were not aware of Mrs. Breen’s presence in or near the intersection until the split second of the impact. As Dr. Talbert approached the intersection the light changed from red to green and he proceeded to cross South Carrollton at what he indicated was a moderate rate of speed. Dr. Talbert and Mrs. Talbert were talking with each other until the impact. When struck, Mrs. Breen was in a pedestrian crosswalk and carrying a suitcase.

The evidence reflects that plaintiff had been using a telephone located on the neutral ground moments before the accident. She left the telephone booth and observed the light was green so she attempted to cross South Claiborne Avenue. A few steps away from the curb, she noticed that the light was changing and she attempted to get back to the safety of the neutral ground. She stumbled as she got close to the curb and was hit by Dr. Talbert’s car before she made it back to safety. The trial court heard the testimony of Dr. and Mrs. Talbert and Mrs. Breen who could remember very few details concerning the accident and the testimony of another lady who claimed to be an eye witness. The trial court rejected the testimony of the eye witness. The trial court rejected the testimony of the eye witness based upon the conclusion that the witness was confused and unreliable.

The defense counsel has argued strenuously that Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978) is inapplicable in this situation. He suggests that Dr. Talbert should be exculpated from liability for the reason that he was not shown to be guilty of any negligence whatsoever under the circumstances. His contention is that Mrs. Breen exposed herself to being hit by traffic imprudently and that she, through her own carelessness was the sole cause of the accident.

The trial court obviously disagreed with this argument and we do also. We think the trial court was of the opinion that Dr. Talbert failed to maintain a proper lookout. The record supports such a conclusion. The intersection has been described in great detail in the record and Dr. Talbert who was familiar with the intersection knew that the street was very wide and pedestrians were usually present. Under such circumstances it is obvious that occasionally pedestrians are caught in the middle of the traffic lane when the lights change. Dr. Talbert’s duty in this situation was defined by the Supreme Court in Baumgartner, supra, as follows:

Our law imposes an additional burden upon motorists approaching a pedestrian crosswalk to use more than ordinary care to see what is ahead; they must expect that people may be crossing' and be prepared for that possibility. Baumgartner, supra, at p. 404.

We are obliged to affirm the factual findings of the trial court and the trial court’s assessment of the credibility of witnesses unless we are able to discern manifest error from the record. Arceneaux v. Domingue, 375 So.2d 1330 (La.1978). Our own review of the testimony, particularly the testimony of the witness who was discredited, leads us to the conclusion that the trial court did not commit manifest error in evaluating the testimony of the witnesses and there is no indication that the trial judge was wrong in his factual findings regarding the events.

It is clearly a holding of Baumgartner v. State Farm Mut. Auto. Ins. Co., supra, that the first duty of one operating a motor vehicle is to keep a sharp lookout ahead to discover the presence of those who might be in danger. Having noted that the light just changed as he entered the intersection, it’s our view, and it was apparently the view of the trial court, that Dr. Talbert should have been particularly alert for pedestrians who might have been caught trying to cross the street when the light changed.

Due to the high degree of care placed upon automobile operators and the testimony presented in the trial court which failed to exonerate defendant from responsibility in this situation, we do not find that the trial judge committed any error and therefore the judgment rendered by the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    Maxwell DESSELLE, Plaintiff-Appellant, v. Jane GUILLORY, et vir., Defendants-Appellees.
    No. 8462.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1981.
    Rehearings Denied Jan. 5, 1982.
    Writs Denied Feb. 19, 1982.

      Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for plaintiff-appellant.
    John T. Bennett, Marksville, for defendants-appellees.
    Before DOMENGEAUX, SWIFT and YELVERTON , JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, participated as Judge ad hoc in this decision.

   SWIFT, Judge.

In these consolidated suits the plaintiffs, Kenneth Maillet, Maxwell Desselle and Garland Desselle, appeal from a verdict of the jury denying their claims of defamation against the defendants, Jane and Gerard Guillory. They also assign as error the jury’s granting of the defendants’ recon-ventional demand for attorneys’ fees.

In July of 1979 Mrs. Jane Guillory was a counselor at a summer church camp for girls. She participated in a conversation with several of the girls who told her about incidents which they had heard or witnessed concerning certain teachers, including the plaintiffs, at Bordelonville High School. When Mrs. Guillory discussed with one of her church deacons the information, which included allegations that the teachers were fondling students, he advised her to inform the school principal.

The following month Mrs. Guillory took up the matter with Mr. Jimmy Bordelon, the principal of the high school, who assured her that he would observe the teachers’ behavior.

On March 6, 1980, Mrs. Guillory visited with Mr. Bordelon to discuss a poor grade on a test given to her daughter by Maxwell Desselle. Mr. Desselle was called in to talk to Mrs. Guillory about it. They had a heated discussion concerning the test and the defendant also made a comment to the effect that she had something else on Des-selle. After he returned to his classroom Mrs. Guillory told the principal that the teachers had continued to molest the children. She testified that prior to this visit Abigail Farbes had informed her that it was still going on. The principal told Mrs. Guillory he did not believe such rumors and had not observed any such behavior. Mrs. Guillory then informed the principal she would take her information to the superintendent.

That same afternoon Mrs. Guillory had a conversation with Mrs. Jeannette Huffmas-ter. When Mrs. Guillory informed her of what she had heard, Mrs. Huffmaster told her that she had seen Maxwell Desselle pat a girl on the buttocks in the presence of Mr. Bordelon.

On March 7, 1980, Mr. Bordelon met with the plaintiffs and informed them of what Mrs. Guillory had said. The four then went to the Guillory home to discuss the matter. At this meeting an argument ensued and at least one of the plaintiffs threatened to sue the Guillorys for defamation.

Later that night Mrs. Guillory called her attorney who advised her to obtain written statements from the girls that had given her the information about the teachers. Mrs. Guillory went to the homes of Abigail Farbes, Joan Hess, Tammy Lemoine, Beverly Martin and Terry Bringold to obtain such statements. She said she explained the situation and alleged incidents to their parents and got their permission before asking the girls to write “letters” as to what they saw or heard about the matter. Three of these persons and her daughter did so.

On March 10, 1980, Mrs. Guillory and Mrs. Huffmaster drew up a petition calling for an investigation by the Evangeline Parish School Board into wrongdoings at Bor-delonville High School. The petition did not contain the names of the plaintiffs or of any specific facts concerning the alleged wrongdoings. These ladies then visited five or six homes in an attempt to obtain signatures on the petition. The school board directed a representative to make an investigation. Upon his failure to obtain any testimony of wrongdoing, the board concluded there was no basis for action against any teacher and closed the case. The rer corded statements taken by the representative were destroyed and the interested parties were notified in writing of the board’s decision.

The only conversation that Mr. Guillory, the husband of Janie Guillory, had with any person other than his wife or the plaintiffs concerning the matter occurred in the summer of 1979. Mr. Guillory told Mr. Armand, a high school band instructor, generally what his wife had heard and assured Armand that he was not involved.

The testimony in the record as to the statements made by the girls to Mrs. Guillo-ry at summer camp follows.

In regard to specific instances, Mrs. Guil-lory testified that Abigail Farbes and Beverly Martin had told her they were fondled by these teachers. She also said that Margie Ballard told her that she slapped Garland Desselle one day when he started feeling her bottom as she came out of the gym dressed for P.E.

Beverly Martin testified she had told Mrs. Guillory that she had heard students say that some of the teachers played with the students. In particular, she had heard Kenneth Maillet would take girls in the bathroom after practice, but they wouldn’t tell her what they did. She also told her that Garland Desselle was friendly with the girls and would allow them to sit in his lap and that he felt one girl during P.E. In addition she told Mrs. Guillory of an incident when Maxwell Desselle kissed her under the mistletoe. Abigail Farbes testified she had told Mrs. Guillory that Maxwell and Kenneth Maillet would flirt around with girls and that Beverly had told her that Maxwell Desselle once had grabbed Beverly and gave her a passionate kiss.

Joan Hess testified that before the Mardi Gras trip she had her majorette uniform on under her jeans and part of the uniform was showing. She stated Mr. Maillet tugged at the jeans and a button came undone from the jeans. Joan further testified she told Kaye Guillory, the defendant’s daughter, that Kenneth Maillet tugged at her jeans pulling a button off.

Tammy Lemoine testified that in the written statement given Mrs. Guillory she said she heard that Kenneth Maillet and another girl “had something going on” and that Garland Desselle said “he was going to get some meat” from two girls “one of these days.”

The testimony as to the content of the statements Mrs. Guillory made to the principal and the parents of high school students is in dispute. Mr. Bordelon, the principal, said Mrs. Guillory told him the teachers were fondling and molesting girls, although she never used the word “intercourse.” Clara Laborde and Peggy Hess stated Mrs. Guillory had told them that one of the plaintiffs, Kenneth Maillet, had unzipped Mrs. Hess’ daughter’s pants before a Mardi Gras band trip and that the plaintiffs were molesting the girls. She also said some teachers were starting this in the elementary grades and taking them to bed by the time they reached the high school grades.

Mrs. Guillory testified that she did not accuse the plaintiffs of anything, but merely told Mrs. Hess and Mrs. Laborde what she had heard from the girls and said she felt the plaintiffs might be having sexual relations with the students. Having heard things about these men, such as one girl having seen Kenneth Maillet with his pants down in the bathroom one night after basketball practice, she was trying to determine if they were true. She also stated at trial that she thought the parents had a right to know and she never intended to do any harm to the men allegedly involved.

The plaintiffs emphatically denied ever molesting or having intercourse with any high school students. Kenneth Maillet did not recall any incident where he unbuttoned a girl’s jeans or did anything improper. Maxwell Desselle said he had harmlessly kissed Beverly Martin at a Christmas dinner. Mr. Bordelon and Maxwell Desselle denied the occurrence of Mr. Desselle patting a girl on the buttocks.

Concerning the statement Mr. Guillory made to James Armand, Mr. Armand stated Mr. Guillory told him certain teachers were molesting girls on a school trip and named the three plaintiffs. Mr. Guillory disputed this by saying he told him some of the girls had stated to his wife that some of the teachers were “messing around.” He testified he did not intend any harm.

The issues presented by this appeal are: 1) whether or not the jury erred in rendering a verdict in favor of the defendants, and 2) whether or not the jury erred in awarding the defendants attorney’s fees under LSA-C.C. Article 2315.1.

In order to maintain an action in defamation, the plaintiff must establish the following elements: 1) defamatory words; 2) publication; 3) falsity; 4) malice, actual or implied; and 5) resulting injury. Cange-losi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196 (La.1980).

The available defenses against an action in defamation are: 1) privilege and 2) truth. Trahan v. Ritterman, 368 So.2d 181 (La.App. 1 Cir. 1979); McGowen v. Prentice, 341 So.2d 55 (La.App. 3 Cir. 1977).

The appellants argue that the evidence presented sufficiently proved the elements necessary for an action in defamation and the defendants failed to bear their burden of proving privilege or truth. Assuming the evidence was sufficient to prove the first three elements of defamation, we find that a qualified privilege existed between Mrs. Guillory and each person she discussed the rumors with.

A qualified privilege exists as to a communication, even if false, between parties sharing an interest or duty. McGowen v. Prentice, supra, page 57. However, to be a good defense such communication must be made in good faith and without malice. Simms v. Clark, 194 So. 123 (La.App. 1 Cir. 1940).

In the present case Mrs. Guillory had discussions with the school principal and with several parents of girls attending Bor-delonville High School concerning the alleged actions of certain teachers. The interests shared by each of these persons were to protect the welfare of their children at school and to provide good teachers in the public schools.

There was sufficient evidence for the jury to have found that Mrs. Guillory was in good faith and without malice in her communications to the principal and the parents. See Ward v. Sears, Roebuck & Co., 339 So.2d 1255 (La.App. 1 Cir. 1976). Several high school girls told her that certain teachers were playing with the female students. She had heard that one of the plaintiffs was taking girls into the bathroom after practice for an unmentioned purpose; that a teacher was allowing a girl to sit on his lap while he felt her body; that a teacher had unbuttoned the jeans of a girl; and that a teacher had kissed a student and he also had patted a girl on the buttocks. Hearing these things from the girls and a parent, it was not unreasonable for Mrs. Guillory to have believed that improprieties were occurring at the school. From these facts the jury could have concluded that Mrs. Guillory had reasonable grounds to believe her statements were true and were made in good faith and without malice. In such case they were privileged.

There was also sufficient evidence for the jury to conclude that the conversation between Mr. Guillory and Mr. Armand, the band instructor, was privileged. Both men had an interest in the welfare of the children, especially during band trips. Mr. Armand testified that he thought the conversation took place in confidence. Mr. Guillo-ry stated he told Mr. Armand that his wife had heard that several of the teachers were “messing around” with the students. Since a girl at camp had evidently told Mrs. Guil-lory that a teacher had unbuttoned a girl’s jeans before a band trip, Mr. Guillory was not unreasonable in his concern over the welfare of the children on band trips and in his belief as to the truth of his wife’s statements.

Although it is not in the record, the petition drawn up by Mrs. Guillory and Mrs. Huffmaster did not constitute a defamatory publication as to the plaintiffs. The uncon-tradicted testimony as to its contents is that the document did not contain the names of the plaintiffs and did not set forth any specific wrongdoings by them.

From our review of the record we are unable to say that the verdict of the jury favoring the defendants on the plaintiffs’ demands is clearly wrong.

The final issue before the court is whether or not the jury erred in awarding the plaintiffs-in-reconvention attorney’s fees under former Article 2315.1, B. This article (in effect at the times of the alleged defamations, but since repealed) provided that attorney’s fees could be awarded to a defendant if the plaintiff’s defamation suit was frivolous.

We do not believe the filing of these suits was frivolous. Our decision is based on the defense of qualified privilege and the record contains no indication of any lack of sincerity on the part of plaintiffs as to their legal position. Therefore the jury award of $3,000 to the Guillorys for attorney’s fees was in error and must be set aside. Boyd v. Community Center Credit Corporation, 359 So.2d 1048 (La.App. 4 Cir. 1978).

For these reasons the judgment of the district court is reversed and set aside insofar as it awarded $3,000.00 at attorney’s fees to the plaintiffs-in-reconvention. Otherwise, it is affirmed. The costs of this appeal are assessed one-half to plaintiffs and one-half to the defendants.

AFFIRMED IN PART AND REVERSED IN PART.

      . Our Docket No. 8463, Kenneth Maillet, and No. 8464, Garland Desselle, v. Jane Guillory, et ux., 407 So.2d 84, respectively, and this case.

        . In McGowen v. Prentice, supra, pg. 57, this court recognized that a good faith communication between parties sharing an interest or duty in providing good teachers in the public schools enjoyed a privilege in a defamation suit.

      . The appellant contends that certain hearsay testimony of statements of the students were improperly admitted into evidence over his objection. The trial judge correctly allowed such testimony in evidence on the issue of good faith for the purpose of establishing that the statements were made to Mrs. Guillory and not for the truth of the matters therein stated.

      . “B. Should plaintiff in any action for defamation, libel, or slander not prevail, and judgment be rendered in favor of the defendant, reasonable attorney’s fees may be awarded to the defendant as an item of taxable costs if the court determines that the action was frivolous. In any such case, any retraction or correction made by defendant must be considered in mitigation of any damages to be awarded.” LSA-C.C. Art. 2315.1.


text:
    Kenneth MAILLET, Plaintiff-Appellant, v. Jane GUILLORY, et vir., Defendants-Appellees.
    No. 8463.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1981.
    Rehearings Denied Jan. 5, 1982.
    Writ Denied Feb. 19, 1982.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for Maxwell Desselle.
    John T. Bennett, Marksville, for Jane Guillory, et vir.
    Before DOMENGEAUX, SWIFT and YELVERTON , JJ.

      Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, participated as Judge ad hoc in this decision.

   SWIFT, Judge.

For the reasons this day assigned in the companion suit bearing our Docket No. 8462, Maxwell Desselle v. Jane Guillory, et vir., 407 So.2d 79, the judgment of the district court is reversed and set aside insofar as it awarded $3,000.00 as attorney’s fees to the plaintiffs-in-reconvention. Otherwise, it is affirmed. The costs of this appeal are assessed one-half to plaintiffs and one-half to the defendants.

AFFIRMED IN PART and REVERSED IN PART.


text:
    Garland DESSELLE, Plaintiff-Appellant, v. Jane GUILLORY, et vir., Defendants-Appellees.
    No. 8464.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1981.
    Rehearings Denied Jan. 5, 1982.
    Writ Denied Feb. 19, 1982.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for Maxwell Desselle.
    John T. Bennett, Marksville, for Jane Guillory, et vir.
    Before DOMENGEAUX, SWIFT and YELVERTON , JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, participated as Judge ad hoc in this decision.

   SWIFT, Judge.

For the reasons this day assigned in the companion suit bearing our Docket No. 8462, Maxwell Desselle v. Jane Guillory, et vir., 407 So.2d 79, the judgment of the district court is reversed and set aside insofar as it awarded $3,000.00 as attorney’s fees to the plaintiffs-in-reconvention. Otherwise, it is affirmed. The costs of this appeal are assessed one-half to plaintiffs and one-half to the defendants.

AFFIRMED IN PART and REVERSED IN PART.


author: LEAR, Judge.

text:
    Ronald G. MELON v. CAPITAL CITY PRESS d/b/a The State Times and Morning Advocate.
    No. 14251.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Writ Denied Jan. 18, 1982.
    Mac Trelles, Jr., Baton Rouge, for plaintiff-appellant Ronald G. Melon.
    W. Luther Wilson, Baton Rouge, for defendant-appellee Capital City Press d/b/a The State Times and Morning Advocate.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

Ronald G. Melon has appealed the granting of defendant’s motion for summary judgment dismissing his suit against Capital City Press d/b/a The State Times and Morning Advocate (Capital City) for damages arising from, the publication in defendant’s newspapers of certain articles. The newspaper articles of which plaintiff complains appeared in defendant’s Morning Advocate “Police Roundup” column and in its State Times “Police Action” column on June 20,1979, the former stating that plaintiff had been arrested for contributing to the delinquency of a juvenile, possession of methamphetamines with intent to distribute and possession of marijuana, and the latter article stated that plaintiff had been booked with these crimes. Defendant concedes that plaintiff was arrested and booked for only two of these charges and was in fact not arrested, booked or charged with possession of methamphetamines with intent to distribute.

The record indicates that the only source of the Morning Advocate “Police Roundup” article was a news release issued by the East Baton Rouge Parish Sheriff’s Office on June 19,1979, and that the article which appeared in the State Times “Police Action” column had as its source the previously published Morning Advocate article.

Plaintiff’s suit alleges defendant’s fault and negligence in the publishing of these articles. In its motion for summary judgment, defendant alleges that its newspaper articles were fair and accurate reports drawn from the official news release of the East Baton Rouge Parish Sheriff’s Department, and the newspaper reports therefore enjoy at least a qualified privilege.

Initially we find that plaintiff was not a public official or public figure. Slocum v. Webb, 375 So.2d 125 (La.App. 3rd Cir., 1979); Gertz v. Robert Welsh, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Phillips v. The Evening Star Newspaper Company, 424 A.2d 78 (App.D.C. 1970); U.S. cert. denied, 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981). In such cases a newspaper is liable for the false report only if some fault on their part can be shown. Slocum v. Webb, supra; Wilson v. Capital City Press, 315 So.2d 393 (La. App. 3rd Cir., 1975), writ refused La., 320 So.2d 203. Our jurisprudence further indicates that the news media can reasonably rely on information obtained from law enforcement agencies, where there is no reason to doubt the correctness and authenticity of the information received. Slocum v. Webb, supra; Wilson v. Capital City Press, supra; LeBoeuf v. Times Picayune Publishing Corporation, 327 So.2d 430 (La.App. 4th Cir., 1976).

The news release issued by the sheriff’s office reads, in pertinent part, as follows:

“NEWS RELEASE

“Sheriff’s deputies arrested a total of thirteen (13) persons yesterday on various drug charges as a result of executing search warrants for four (4) Baton Rouge residences.
“Four (4) persons were arrested after a search of the residence at 2768 Sorrel. They are:
“Dwayne J. Broussard, age 22, Ronald E. Melon, age 22, Arnold J. Melon, age 21, and Keith J. Broussard, age 21, all of the above address. Charges ranged from contributing to the delinquency of a juvenile to possession with intention to distribute Methamphetamines, and simple possession of other drugs, including marijuana. Bonds were set at $10,000 each.”

Defendant’s Morning Advocate reporter interpreted this news release to mean that each of the four named persons had been arrested for each and every one of the charges listed. While the trial court found that the articles were a “reasonable interpretation of the news release”, and on this basis granted defendant’s motion, it did not state, and we do not find that this is the only reasonable interpretation of the news release. We believe that another equally reasonable interpretation is that the persons named had been arrested for some, that is one or more, of the listed crimes, but not necessarily that each had been arrested for all of those crimes listed. We note that, in his argument on summary judgment, defendant admits that reasonable minds could differ as to what the sheriff’s news release means.

In Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), the Supreme Court, in considering defendant’s motion for summary judgment, stated that:

“When the evidence submitted on the motion leaves no relevant, or genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted . . . . ”

In Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977), the Supreme Court reaffirmed its holding in Cates, supra, stating that, “Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted.” From these holdings we conclude that, although the parties may not differ as to the facts presented to the court, if reasonable minds may differ on the conclusion drawn from those facts [in this case the reasonableness of the reporter’s conduct in reading the news release, reaching his conclusions and failing to further investigate its correctness] then a factual issue exists and summary judgment must be denied. Thus, we find defendant’s reliance on the holdings of the Slocum, Wilson and Le-Boeuf cases to be misplaced, because we cannot conclude as a matter of law that defendant’s reporter reasonably relied on the sheriff’s news release, or that he had “no reason to doubt the correctness and authenticity of the information received.” Whether the news release itself is ambiguous, and this or other circumstances gave or should reasonably have given him “reason to doubt”, and thus put him on notice that further investigation was necessary, and the reasonableness and prudence of the reporter’s conduct, are factual matters to be determined at a trial on the merits, rather than at a motion for summary judgment. Morris v. Louisiana Coca-Cola Bottling Company, Ltd., 354 So.2d 659 (La.App. 1st Cir., 1977).

With regard to the State Times “Police Action” article, the reporter who wrote this article testified in a deposition that an article published in the Morning Advocate that morning was the source of the information she used in writing her “Police Action” article. While she stated that she “probably” would have cheeked with the sheriff’s office and “probably” would have been told that the Morning Advocate reporter had been given a press release, she did not say that she had read or even seen the sheriff’s news release.

We find this connection too tenuous, and not within the jurisprudential rule of Slocum, Wilson, and LeBoeuf, supra. We are unwilling to extend this protection, which allows the news media to reasonably rely upon a sheriff’s office press release, to the éxtent of allowing one reporter, who has not read the press release, to base a news article on a previously published article, even where the prior article may have itself been based on the sheriff’s news release. Thus, even if we had found that no factual issue exists as to whether this particular press release could reasonably be relied upon, because we cannot conclude as a matter of law that defendant’s State Times reporter did in fact rely upon the press release in writing her article, a trial on the merits is necessary to determine whether defendant was negligent in publishing this false report.

For the foregoing reasons, the judgment below is reversed and this cause is hereby remanded to the trial court for further proceedings in conformity herewith. Costs of this appeal are to be paid by defendant-ap-pellee, Capital City Press.

REVERSED AND REMANDED.


author: CHIASSON, Judge.

text:
    Retha M. STAFFORD v. DIVISION OF ADMINISTRATION.
    No. 14284.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      Larry Feldman, Jr., Gold, Little, Simon, Weems & Bruser, Alexandria, for appellant.
    Charles E. Grey, Jr., Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellee.
    John DiGiulio, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner, Director, Dept, of State Civil Service.

      Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff, Retha M. Stafford, appeals a ruling of the State Civil Service Commission.

The facts of the case are set forth in Stafford v. Division of Administration, 380 So.2d 129 (La.App. 1st Cir. 1979), wherein this court reversed a prior ruling of the Commission that the plaintiff’s right to appeal had prescribed under Civil Service Commission Rule 13.12(c), and remanded the case for a decision on the merits.

The facts pertinent to the instant appeal are as follows:

“This cause arises out of a previous dispute between the Division of Administration (Division) and the Department of State Civil Service relative to whether the rank and file employees of the former are in the ‘classified service of the state.’ The facts are not in dispute.
“Mrs. Stafford originally obtained a probational appointment in March of 1975 to the Department of State Civil Service, Division of Family Services, as a Dictating Machine Operator I. In June of 1975, she voluntarily left Family Services to accept a probational appointment with the Division in its purchasing department as a Typist Clerk III in the Pineville, Louisiana, office. In that capacity she received salary increases on three subsequent occasions.
“In February (14) of 1977, this court rendered its decision in In Re Division of Administration, 343 So.2d 277, wherein it was held that the Division of Administration is part of the ‘Office of the Governor’ and its employees were not in the classified service of the state or within the jurisdiction of the Department of Civil Service and the Commission. On May 11, 1977, the Supreme Court of this state denied writs. 345 So.2d 504 (La.1977). In obedience to these decisions, the Commission adopted pertinent resolutions to the effect that members of the Division were not in the classified service of the State and would not be subject to or eligible for adjudication under the rules and regulations of the Department. By letter dated June 14, 1977, the director of the State Department of Civil Service advised all employees of the Division of Administration of the aforementioned resolutions.
“On September 15, 1977, Mrs. Stafford was advised that the Pineville office would be closed and her job with the Division would be terminated as of September 30, 1977. She was not offered other employment within that unit.
“Through her own efforts, Mrs. Stafford obtained a classified position with the Department of Health and Human Resources as a Dictating Machine Operator II at the State Hospital in Pineville, Louisiana. The effective date of this employment was April 18, 1978.
“On September 5, 1978, the Supreme Court of this state rendered its opinion in Smith v. Division of Administration, 362 So.2d 1101 (La.1978), rehearing denied October 5, 1978, which overruled In Re Division of Administration, above, and declared in part that with the exception of its appointed head and those persons declared unclassified by Civil Service Law, all employees of the Division of Administration were classified employees of the State of Louisiana.
“Following an exchange of correspondence between herself and the office of the Director of Civil Service, Mrs. Stafford filed an appeal with the Commission on October 13, 1978, complaining of her dismissal from the Division in September of 1977, without the offer of a transfer to another department of the State and her reemployment in April of 1978 to a lower grade position.”

On remand the plaintiff contended that she had retroactively acquired classified status under the holding of Smith v. Division of Administration, 362 So.2d 1101 (La. 1978); that her termination was illegal within the meaning of La.R.S. 49:11s, and therefore; that she was entitled to the back pay of a Typist Clerk III with all permissive and mandatory pay increases from the time of her termination until such time as she is offered another position pursuant to the requirements of Civil Service Rule 12.4(d), with no credit to the Division for the salary she earned while employed with the Department of Health and Human Resources as a Dictating Machine Operator II. She further contended that she was entitled to be placed on the list for department preferred reemployment pursuant to Civil Service Rule 12.4(e).

The defendant, Division of Administration, at that time conceded that the, plaintiff had retroactively acquired classified status pursuant to the holding of the Smith decision, supra; that she was entitled to something in the way of an award for back pay, and; that she should be entitled to apply for department preferred reemployment rights pursuant to Civil Service Rule 7.21(a). The Division contends, however, that her termination on September 30,1977, was not illegal within the meaning of La. R.S. 49:113 because it was effected in full compliance with the law as it existed at that time and, therefore, that the Division was entitled to a credit for the salary she earned while employed with the Department of Health and Human Resources. The Division further contends that the plaintiff was not entitled to back pay from the time of her termination until she has been offered another position pursuant to the provisions of Rule 12.4(d) because there was no evidence that another such position was or would be available to the plaintiff, and that she was not entitled to permissive pay increases during such period because such pay increases are purely discretionary.

On the basis of the Smith decision, the Commission found that the plaintiff had retroactively acquired classified status and that her termination on September 30,1977, could only have been accomplished in compliance with the Civil Service Rules. However, the Commission found that her termination was not illegal within the meaning of La.R.S. 49:113 and that the Division was entitled to a credit for the salary she received subsequent to April 19, 1978, while employed with the Department of Health and Human Resources. Accordingly, pursuant to its authority under Rule 2.9(f), to issue “appropriate orders” in such cases, the Commission ruled that the plaintiff was entitled to be paid the salary she would have earned as a Typist Clerk III for the period from September 30, 1977 to April 19, 1978, and that the one year prescriptive period concerning application for department preferred reemployment rights established in Rule 7.21(a) would be waived for a period of thirty days from the date of its ruling.

In the instant appeal, plaintiff contends that the Commission erred in ruling that she was entitled to some but not all of the rights of a classified employee whose employment is terminated. She contends that the Commission erred in failing to award her full back pay with all permissive and mandatory pay raises and increases from September 30,1977, until such time as she is, offered another position. She further contends that the Commission erred in failing to find that her discharge on September 30, 1977, was illegal within the meaning of La.R.S. 49:113 and in allowing the Division a credit for the salary she earned as a Dictating Machine Operator II after April 19, 1978. Finally, she contends that the thirty day period granted by the Commission to apply for preferred reemployment rights is not a reasonable period of time within which to make such application.

The Division did not appeal nor did it file an answer to plaintiff’s appeal. The Director of the Department of State Civil Service was made a party defendant in this suit in accordance with La.R.S. 13:3418 by order of this court, dated February 10,1981. The Director did not appeal the judgment of the Commission nor did he file an answer to the plaintiff’s appeal. The Director argues in brief that the Commission erred in awarding appellant retroactive relief, in light of the recent opinion of the Supreme Court in Carleton v. Division of Administration, 388 So.2d 709 (La.1980) and in light of the jurisprudence concerning retroactivity. The Division and the Director contend that the appellant’s termination on September 30, 1977 was not illegal and, if she is entitled to back pay, she is not entitled to such from the time of her termination until such time as she is offered another position and that she is not entitled to permissive pay increases.

With regard to the issue of retro-activity of the Smith decision, the law is to the effect that in determining whether or not a judicial decision should be given retroactive effect, three factors should be considered: (1) the decision to be applied non-retroactively must establish a new principle of law either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation, and; (3) the inequity imposed by retroactive application must be weighed. Lovell v. Lovell, 378 So.2d 418 (La.1979). Further, where a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the “injustice or hardship” by a holding of nonretro-activity. Lovell, supra.

In the instant case, the first standard set in Lovell, supra, is clearly met since the decision of Smith established a new principle of law by overruling the clear past precedent of In Re Division of Administration, 343 So.2d 277 (La.App. 1st Cir. 1977).

As to the second factor of Lovell, supra, we must determine whether or not the retrospective application of Smith would further the purpose and effect of the Civil Service Commission’s Rules.

The purpose of the Civil Service Article (Article X, Section 2 of the 1974 Louisiana Constitution), as enunciated by our Supreme Court in the case of Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800, 807 (1971), is furthered by adding the employees of the Division of Administration to the classified service. However, prospective application of the Smith decision adequately furthers this purpose.

If state government did not reap the benefits of the experience gained by longstanding service between February 14, 1977 and October 5, 1978, rolling back the calendar will not cure this problem.

If an employee was the victim of political favoritism during this period, a retroactive application of the Smith decision could cure this problem, but not without the devastating effects that will be discussed below. On the other hand, prospective application would cure this problem and would also avoid the inequities. Thus, under the second factor in Lovell, the Smith decision could arguably be considered appropriate for retroactive application.

The third factor in Lovell mandates a discussion of the inequities which would result from the retroactive application of the Smith decision.

Imminent problems would include:

(1) The Division of Administration granted many employees who were placed in the unclassified service pay increases. These increases would not have been authorized had Civil Service Rules been followed. If Smith is applied retroactively, these pay increases will have to be nullified.

(2) Employees who suffered a reduction in pay as a result of the transfer to the classified service will incur even greater financial loss because, if Smith is applied retroactively, their pay will have to be adjusted effective February 14, 1977 (or the date of the initial hiring), instead of early 1979.

(3) If Smith is applied retroactively, the Division of Administration will have to reprocess every personnel action taken between February 14, 1977 and October 5, 1978 in accordance with the appropriate Civil Service Rules. These forms will have to be submitted to Civil Service for appropriate action. The time and money expended would be enormous.

(4) If Smith is to be applied retroactively, Civil Service will have to reprocess all the transition paperwork used to transfer the unclassified position in the Division of Administration to the classified service.

(5) If Smith is applied retroactively, the Commission could launch an investigation to determine if between February 14, 1977 and October 5, 1978, any employee of the Division of Administration engaged in prohibited political activities or violated any Civil Service Rules,, notwithstanding the fact that these activities were not prohibited at the time.

(6) If Smith is applied retroactively, the Commission will be required to grant retroactive relief to all employees of the Division of Administration who were adversely affected by personnel actions between February 14, 1977 and October 5, 1978. Each personnel action complained of will have to be reversed for procedural defects and the Division of Administration (i.e. the State Treasury) will bear the financial burden of reinstatement and retroactive back pay. If Smith is given only prospective application, the Commission could still entertain the appeals and could grant appropriate relief.

With these problems in mind, we find that the considerations against the retroactive application of the Smith decision clearly outweigh those in favor of its retroactive application.

For these reasons, we hold the Commission erred in awarding the plaintiff back pay on the basis of its findings that she had retroactively acquired classified status by virtue of the Smith decision and that her termination could only have been effected in compliance with the Civil Service Rules.

As was previously mentioned, however, the defendants have not appealed nor have they answered the instant appeal. If an appellee desires to have a judgment modified, revised, or reversed in part or if he demands damages against the appellant, he must file an answer to the appeal stating the relief demanded. La.C.C.P. art. 2133. Since the defendants failed to answer the appeal, the Commission’s award for back pay is final and it must be allowed to stand.

Finally, with respect to the plaintiff’s contentions regarding application for department preferred reemployment rights, we find that the plaintiff has not shown that the thirty day extension is an unreasonable period and that the ruling of the Commission in this respect is within its discretion pursuant to Rule 2.9(f).

For the foregoing reasons, the ruling of the Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.

      . La.R.S. 49:113 provides:
      “Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation.”

      . Civil Service Rule 12.4(d) provides:
      “A permanent employee affected by a layoff must be offered another position in the same, equivalent, or lower class by the appointing authority, with a minimum reduction in pay range, if there exists in the governmental unit conducting the layoff such position for which he is qualified which is occupied by a provisional or probationary employee. Such offer shall first be to such a position in the commuting area. If no such position exists in the commuting area, offer must be made to any such positions outside the commuting area.”

      .Civil Service Rule 12.4(e) provides:
      “If any permanent employee is separated by a layoff, he may have his name placed on appropriate preferred re-employment lists as provided in Chapter 7 of these Rules.”

      . Civil Service Rule 2.9(f) provides:
      “To hear appeals from employees and others who claim their rights under these Rules and the Civil Service Article have been violated and to issue appropriate orders in such cases.”


author: PRICE, Judge.

text:
    Claude Eugene HENDERSHOT, Plaintiff-Respondent, v. Leecy Estelle Wynne HENDERSHOT, Defendant-Relator.
    No. 14838.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 16, 1981.
    Evans, Feist, Auer & Thompson by Paul A. Strickland, Shreveport, for defendant-relator, Leecy Estelle Wynne Hendershot.
    Charles E. McConnell & Associates by James S. Harris, Springhill, for plaintiff-respondent, Claude Eugene Hendershot.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Writs were granted in this nullity action to review the district court’s order to stay further proceedings on a related rule to make past due alimony executory pending in a separate action.

On August 5,1980, Leecy Estelle Hender-shot filed a petition for divorce and permanent alimony against her non-resident husband. An attorney was appointed to represent Claude Eugene Hendershot in the divorce proceeding while personal jurisdiction for the alimony matter was garnered by use of the long arm statute. The appointed attorney filed an answer in the nature of a general denial on behalf of the non-resident defendant. On December 10, 1980, Leecy Hendershot was granted a judgment of divorce, with the matter of alimony being continued.

The judgment of divorce was amended and supplemented on April 28, 1981, to include an award of alimony in the amount of $350 per month, payable from the date of the original judgment. Claude Hendershot never personally appeared in this proceeding nor was a default judgment taken against him.

On July 6, 1981, Mrs. Hendershot filed a rule to make past due alimony executory. While the rule was still pending, Mr. Hen-dershot filed this action seeking a nullification of that part of the divorce judgment which awarded Mrs. Hendershot alimony. He also filed a motion in the nullity action for a stay of the proceedings brought by Mrs. Hendershot to accrue past due alimony so that the validity of the alimony judgment could be determined preceding any enforcement thereof. After a hearing on the motion the trial court found that a genuine issue existed as to the validity of the alimony award and further determined that justice would best be served by issuance of the stay order. Judgment was rendered staying the alimony proceedings “until such time as the validity of the judgment rendered by the court in said proceeding on the 28th day of April, 1981, has been determined.” On the application of Mrs. Hendershot, we granted alternative writs of prohibition, certiorari, and mandamus.

The jurisprudence has recognized that relief from liability for accrued alimony cannot be obtained except by the method and for the causes prescribed by law. Pisciotto v. Crucia, 224 La. 862, 71 So.2d 266 (1954); Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (1953); Hotz v. Hotz, 346 So.2d 326 (La.App. 4th Cir. 1977), writ denied 349 So.2d 880; Appleby v. Appleby, 245 So.2d 440 (La.App. 1st Cir. 1970).

Under the date of April 28, 1981, Mrs. Hendershot obtained a judgment for permanent alimony in the amount of $350 per month. She is entitled to enforcement of this award pursuant to La.C.C.P. Article 3945, which states:

When the payment of alimony under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due alimony determined and made executory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due alimony.

No discretion is vested in the trial court to deny a party the right to have past due alimony made executory and then converted into a money judgment because it is a vested property right. Pisciotto v. Crucia, supra; Sampognaro v. Sampognaro, supra; Hotz v. Hotz, supra; Appleby v. Appleby, supra. Since the trial court has no discretion in matters brought under La.C.C.P. Art. 3945, we find the order staying the rule to make past due alimony executory was improvidently granted.

We note the main thrust of the nullity action is that the alimony judgment is absolutely null for vices of form. La.C. C.P. Article 2002. The absolute nullity of a judgment may be adjudicated at any time and may be raised collaterally. Nethken v. Nethken, 307 So.2d 563 (La.1975). Thus, the absolute nullity of the alimony award for vices of form would be an available defense on the rule to make past due alimony executory. Furthermore, a judgment declaring alimony past due and executory may be subject to suspensive appeal. See Elchinger v. Elchinger, 181 So.2d 297 (La. App. 4th Cir. 1965), affirmed, 248 La. 1098, 184 So.2d 23; Lacour v. Lacour, 355 So.2d 1083 (La.App. 4th Cir. 1978). But compare Frederic v. Frederic, 302 So.2d 903 (La. 1974); La.C.C.P. Article 3943. There is also the availability of injunctive relief under appropriate circumstances.

For the above and foregoing reasons, the writs previously issued herein are made peremptory and the district court’s order to stay the rule on past due alimony is set aside. The case is remanded to the Twenty-Sixth Judicial District Court for further proceedings. The cost of this writ is to be borne by Claude Hendershot.


text:
    Roy C. THOMAS v. Andrea REED.
    No. 52928.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Rehearing Denied Jan. 6, 1982.
    Holifield & Harper, Matthew W. Harper, Jr., Laurel, for appellant.
    J. Ronald Parrish, Laurel, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

REVERSED AND RENDERED.

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


text:
    Frank Albert NOBLE v. STATE of Mississippi.
    No. 53162.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    J. W. Miller, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

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

AFFIRMED.


author: SMITH, Presiding Justice,

text:
    Sammy SADLER v. STATE of Mississippi.
    No. 53058.
    Supreme Court of Mississippi.
    Dec. 9, 1981.

      Burdine & Austin, Curtis H. Austin, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, WALKER and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Sammy Sadler was indicted for the crime of aggravated assault upon a law enforcement officer. He was tried upon that charge in the Circuit Court of Lowndes County, was convicted, and sentenced to serve a term of 28 years imprisonment. He has appealed here, assigning several grounds for reversal.

The incident, which gave rise to Sadler’s indictment and conviction, occurred on Sunday, December 7,1980. It appears from the evidence that Sadler had gone to the home of one Griffin, where he spoke with his “wife”, Barbara “Tiny” Perkins. After a quarrel with Sadler, she and her children had moved into the Griffin home. Appellant had been drinking, and after some conversation, obtained a shotgun from the trunk of his car and threatened to kill Tiny and her children. This conduct on Sadler’s part was induced by his belief that Tiny was engaged in a relationship with a new boyfriend, one Harris.

When Sadler approached Griffin’s house with the gun, Griffin kept him from coming into the house. The supposed boyfriend, Harris, and Tiny ran out the back door and hid in the woods. Meanwhile Tiny had dispatched her son to a neighbor’s house to call the police. Having done this, Tiny returned to the Griffin house.

In response to the call, Deputy Sheriff Jimmy Covington was officially informed that Sadler was at the Griffin home threatening to kill Tiny and her children with a gun. Deputy Covington, answering the call, drove his official automobile into the Griffin driveway where he saw Sadler in the yard with the shotgun in his hands. Drawing his service revolver, Deputy Cov-ington ordered Sadler to put the gun down. Griffin also asked Sadler to put the gun down. Sadler refused and Deputy Coving-ton repeated his order to Sadler. Sadler continued to refuse to drop his gun. As Griffin backed away from Sadler, Sadler fired the gun in the direction of Griffin’s house. Griffin’s wife yelled while standing in the door, “Oh my God I’ve been shot” and fell to the floor. When this happened, Deputy Covington fired one shot over appellant’s head and appellant began to run away. Covington fired two more shots at appellant as he disappeared around the corner of the house. Covington then put his revolver on the seat of the patrol car and began taking Ms shotgun out of the car. However, before he was able to get out of the car with his gun, Sadler levelled his shotgun at Deputy Covington and fired at him from the corner of the house. The blast from Sadler’s gun struck Deputy Cov-ington in the face and on the hands, seriously wounding Deputy Covington and causing him to lose the sight of one eye.

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)
We conclude there was ample evidence to support the verdict of the jury and we decline to intrude into the factfinding office of the jury. [288 So.2d at 868].

Tiny’s boyfriend, Harris, testified that he was at the Griffin home as were Tiny and the people who lived in the house. This witness testified that Sadler had gone to the Griffin house on three occasions that day. On the third visit Sadler had gone to his car, obtained a shotgun out of the trunk, and so armed, started into the house. However, Griffin was able to prevent his entry. Harris saw a police car arrive with the “lights going.” This was Deputy Covington responding to the call for help.

The above statements are corroborated by the testimony of Griffin’s eleven year old son, Terrell. This witness said that appellant had been at the Griffin home on three different occasions and on the last visit had opened the trunk of his car from which he took a “long gun.” He described how his father had tried to keep Sadler from coming into the house and how his mother had instructed him to call the police. Terrell said that he had run up the road to the Holliman home where he had called the police. When Covington arrived in his official automobile it had its “blue lights” on. Terrell got in the car with Deputy Coving-ton and had informed him that Sadler was trying to kill Tiny at the Griffin home and that Sadler was armed with a gun. When Deputy Covington arrived, he was in an automobile easily recognizable as a sheriff’s patrol car. It had the usual lights on top and Deputy Covington was dressed in a sheriff’s uniform. The testimony of this witness and other testimony was to the effect that Griffin had gone over to Sadler and asked him to put his gun down and that Sadler had refused to do so, causing Griffin to back away. Sadler then fired his gun and the blast struck near the front door of the Griffin house. Covington heard someone scream “Oh my God I’ve been shot” and saw someone fall. It was at this point that Deputy Covington had fired over Sadler’s head and Sadler had begun running away. Covington then fired at appellant twice as he went around the corner of the house. Covington placed his revolver on the seat of his patrol car and reached in to get his shotgun. As he started out of the car he saw appellant had returned from around the corner of the house. Sadler shot Deputy Covington in the face and hands. As a result of this shooting, Covington is blind in his left eye and has numerous shotgun pellets still embedded in his face and has not regained the use of one hand.

Sadler did not take the stand.

Based upon .the above evidence the jury was fully warranted in finding Sadler guilty of the offense charged.

Complaint is made of the action of the trial court in declining to give instruction D-3. The State points out that refusing to give this instruction was proper. Instruction D-3 reads as follows:

The Court instructs the jury that if Deputy Jimmy Covington fired and injured the defendant, Sammy Saddler, [sic] in an attempt to effect his unlawful arrest and further that the force used by Deputy Covington was excessive and life endangering, then Sammie [sic] Saddler was entitled to respond or counter with reasonable force for self-defense if the firing of the weapon by Jimmy Covington was unreasonable and unnecessary, then and in that event the defendant, Sammie [sic] Saddler, is not guilty as charged and it is your duty to so find.

It is pointed out that the trial court gave instruction C-21 which told the jury:

The Court instructs the jury that if you believe from the evidence in this cause that Deputy Jimmy Covington committed an unprovoked or unnecessary assault or attack upon the defendant, Sammy Sa-dler, while attempting to effect his arrest, then in that event the defendant had the right to resist said unprovoked or unnecessary attack, and if you further believe the defendant’s use of this force was not more than reasonably necessary for his own protection and that the defendant’s conduct did not cause the assault, then you should find the defendant not guilty.

This Court has said that a trial judge is not required to give instructions covered by other instructions, although the language may differ. Bullock v. State, 391 So.2d 601 (Miss.1980), Ragan v. State, 318 So.2d 879 (Miss.1975).

The trial court committed no error in declining to grant instruction D-3.

Finally, complaint is made that certain photographs admitted into evidence showing the extent of the injuries inflicted upon Deputy Covington was error and required reversal. These photographs depicted the bodily injury which resulted when Sadler shot Deputy Covington in the face with his shotgun.

In Voyles v. State, 362 So.2d 1236 (Miss. 1978), this Court said:

This Court has held that in considering the competency, relevancy and materiality of photographs, it is within the sound discretion of the trial judge to determine whether or not the photographs have a legitimate evidentiary purpose. Irving v. State, 228 So.2d 266 (Miss.1969); Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953); Coleman v. State, 218 Miss. 246, 67 So.2d 304 (1953). [362 So.2d at 1241],

See: Steed v. State, 396 So.2d 625 (Miss. 1981); Bullock v. State, 391 So.2d 601 (Miss. 1980); Irving v. State, 361 So.2d 1360 (Miss. 1978), Cert. Denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979).

The severity of these injuries, which were the natural consequence of the discharge of the shotgun into Deputy Coving-ton’s face, removes any question that Sa-dler’s intention was to kill or grievously wound Deputy Covington. The trial court did not abuse its discretion in admitting these photographs into evidence.

The conviction and sentence appealed from must be and are affirmed.

AFFIRMED.

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


text:
    Solomon WILLIAMS v. STATE of Mississippi.
    No. 53124.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Billie J. Graham, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before BROOM, LEE and HAWKINS, JJ.

AFFIRMED.

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


text:
    Charles McConnell STEIJEN v. Terri Davis STEIJEN.
    No. 53121.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Robert J. Brantley, Jr., Jackson, for appellant.
    R. Conner McAllister, Jackson, for appel-lee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

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

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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


text:
    Lewis CASTON v. STATE of Mississippi.
    No. 53053.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    James J. Fougerousse, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED.

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


text:
    Billy Ray McDONALD v. Beatrice Sampson McDONALD.
    No. 53143.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Ceola James, Vicksburg, for appellant.
    No Representation for Appellee.
   Appeal from Chancery Court, Warren County; Nat W. Bullard, Chancellor.

Before BROOM, Acting P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    R. C. SMITH v. Cynthana LEE, Mamie Lou Lee; Unknown Heirs of Lum Smith; and all Persons Having or Claiming any Legal or Equitable Interest in the Land Described Herein.
    No. 53177.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Alfred H. Rhodes, Jr. and David F. Baughn, Vicksburg, for appellant.
    Teller, Chaney & Rector, M. James Chaney, Jr., Vicksburg, for appellee.
   Appeal from Chancery Court, Warren County; Nat W. Bullard, Chancellor.

Before BROOM, Acting P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    DIXIE STOCK YARD, INC. v. Harold PARKER.
    No. 53169.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Wilbourn & Rogers, Don. 0. Rogers, Meridian, for appellant.
    Gray, Montague & Pittman, F. Douglas Montague, III, Hattiesburg, for appellee.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

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

AFFIRMED.


author: HAWKINS, Justice,

text:
    Billy Keith WARREN v. STATE of Mississippi.
    No. 52995.
    Supreme Court of Mississippi.
    Dec. 16, 1981.

      Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Billy Keith Warren appeals from a conviction of the criminal offense of possession with intent to deliver marijuana in an amount greater than one ounce but less than one kilogram in the circuit court of Simpson County.

The issue we address on this appeal is whether or not Warren was entitled to a mistrial upon motion being made following the state’s asking a co-indictee called as a defense witness if he had been convicted of the same offense, and which motion was overruled. We hold the motion should have been sustained, and reverse and remand.

Warren and Royce Timothy Welch were jointly indicted for this offense by the Simpson County grand jury February 21, 1980. A severance was granted in the trial of these defendants, with Welch being first tried and convicted. Warren’s case was tried October 9, 1980.

During the course of the trial Warren called as a defense witness the co-indictee Welch. On cross-examination by the state, the following transpired:

Q All right. Now, you were convicted a couple of weeks ago for your part in this, weren’t you?
A Yes, sir.
Q All right.
BY MR. TULLOS:
May it please the Court, I’ve got a motion
I’d like to make.
BY THE COURT:
Let the Jury retire, please. (R. 81)

Out of the presence of the jury, defense counsel thereupon made a motion for a mistrial, which was overruled by the court. The district attorney was not admonished, and the jury was not instructed to disregard the question and answer.

Upon resuming questioning the state asked Welch if he had ever been convicted of any crimes involving marijuana before, to which he replied: “I had one misdemean- or and I was convicted for possession of marijuana.” The record does not reveal if any such conviction was the trial two weeks previously.

The above constituted prejudicial error, and the defendant was entitled to a mistrial. See Henderson v. State, 403 So.2d 139 (Miss.1981); Buckley v. State, 223 So.2d 524 (Miss.1969).

REVERSED AND REMANDED.

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


author: HAWKINS, Justice

text:
    Leo E. EDWARDS v. STATE of Mississippi.
    No. 53115.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Percy S. Stanfield, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, LEE and HAWKINS, JJ.
   HAWKINS, Justice

for the Court.

Leo E. Edwards was convicted of murder in the circuit court of the First Judicial District of Hinds County and his punishment fixed by the jury at life imprisonment in the state penitentiary. We affirm.

The only error assigned is the circuit judge excusing for cause five jurors who had conscientious scruples against the infliction of the death penalty.

When the panel was being questioned for cause by the state, they were asked:

First, do any of you have any conscientious scruples against the infliction of the death penalty when the law allows it and in proper cases where the testimony warrants it? Do any of you — is there any of you who have conscientious scruples against the death penalty?

The circuit judge also individually questioned those expressing disapproval. Thereafter, upon the challenge by the state for cause, he excused five jurors who had expressed such scruples against the infliction of the death penalty.

No prejudicial error may be claimed for excusing for cause jurors who have conscientious scruples against the infliction of the death penalty, where the penalty finally fixed by the jury is life imprisonment. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, Moore v. State, 237 So.2d 844 (Miss.1970); Joseph v. State, 218 So.2d 734 (Miss.1969).

AFFIRMED.

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


author: BOWLING, Justice,

text:
    Charles Edward “Chuck” DEPREO v. STATE of Mississippi.
    No. 52785.
    Supreme Court of Mississippi.
    Dec. 16, 1981.

      James E. Atchison and Richard D. Horne, Mobile, Ala., for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant Charles Edward “Chuck” De-preo was indicted, tried and convicted of the crime of murder in the Circuit Court of Hancock County, Mississippi. From a sentence of life imprisonment with the Department of Corrections, he appeals to this Court and assigns the following errors, to-wit:

I. THE TRIAL COURT ERRED IN NOT EXCLUDING THE ALLEGED CONFESSION OF THE APPELLANT.
II. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE EVIDENCE REGARDING THE SEARCH AND THE RESULTS THEREOF, OF THE HOME OF EIDO DEPREO, APPELLANT’S FATHER.

III. THE TRIAL COURT ERRED IN FAILING TO GRANT A HEARING ON APPELLANT’S SPECIAL BILL OF EXCEPTIONS.

During the early morning, night-time hours of April 8, 1978, Janice Ladner met her death at her home in Hancock County, Mississippi. She was shot three times with what proved to be a .22 caliber gun, after which the home was set on fire and burned. An autopsy revealed that she was dead prior to the fire. Living with Mrs. Ladner was her six-year-old daughter. At the time of the shooting, a bullet struck the child a glancing blow. She received an injury to her head in some manner not definitely determined. The child was able to leave the house and go to the house of a nearby neighbor and inform the residents there of what had occurred.

There is no need to relate in detail in this opinion all of the evidence presented by the state and appellant at the trial, due to the above stated limited assignments of error. We shall discuss the evidence in the record that relates to each of these assignments.

I. THE TRIAL COURT ERRED IN NOT EXCLUDING THE ALLEGED CONFESSION OF THE APPELLANT.

There was a pre-trial hearing on appellant’s motion to suppress an alleged confession given by him at the Navy facilities at Portsmouth, Virginia. Appellant had been in the Navy service since 1977. During the course of the investigation by law enforcement officials after the shooting of Mrs. Ladner, matters were developed which led to a belief by the officials that the appellant had committed the crime. The events occurring thereafter were related on the motion to suppress by Ronnie Peterson, Chief Deputy Sheriff of Hancock County. He testified that he, along with Sheriff Ladner and Mississippi Highway Patrol Investigator Joe Price, went to Portsmouth, Virginia, on April 22, 1978. Arrangements for the trip and the contacting of appellant were made through the Navy authorities in Gulfport, Mississippi, and the Navy authorities in Virginia. The principal authority for the Navy in Virginia who handled the details of appellant meeting the officials from Mississippi was an Officer Mote, who was assigned to the Naval Investigative Service at Portsmouth. Under the arrangements between the Naval officer in Gulfport, Mississippi, and Officer Mote, appellant was detained on his ship by the Naval authorities until the three Mississippi officers arrived at about 12:30 p. m. on April 22,1978. As hereinafter shall be discussed the Mississippi authorities carried with them a warrant for the arrest of appellant on a charge of arson involving a school building and three “John Doe” warrants. According to the testimony of Mr. Peterson, upon arrival at Portsmouth, they were met by two Navy men, Donovan and Redding, who carried them to the Navy facilities where they met Officer Mote, who handled all further proceedings for the Navy.

Peterson testified that the three officers and appellant were placed in a room at about 1:30 p. m. Peterson testified that Sheriff Ladner initially advised appellant of all of his rights, including all requirements of the so-called Miranda warning; that this was first done verbally and then appellant freely and voluntarily executed a written waiver in which he again was advised of all of his rights, including the right to remain silent and the right to have an attorney present. This statement shows the time of execution as 1:45 p. m., was signed by appellant and witnessed by the three officers.

Appellant had not been advised that he was under suspicion for murder. Officer Mote had advised appellant that he was to be questioned about an arson. Later in the hearing Officer Mote testified that when he was first contacted by the Gulfport Navy authorities he was requested not to advise appellant that he was also subject of a homicide investigation.

Peterson testified that for about two hours appellant was questioned concerning both the arson and the death of Mrs. Lad-ner. Peterson’s testimony was that various breaks were taken during the questioning and refreshments secured, for both the officers and appellant. Peterson’s positive testimony was that there were no threats or coercion of any type made by the officers during the questioning of appellant. Upon requesting appellant to return to Mississippi with them for further investigation, appellant requested that he be allowed to talk with Officer Mote. This was done with Officers Mote and Donovan spending about thirty minutes alone with appellant. The three Mississippi officers were never in the room during appellant’s conversation with the Navy personnel.

Peterson testified that after appellant’s conversation with the Navy officers, he, Peterson, returned to the room alone. He first secured another waiver of rights signed by appellant, the same type as was secured originally. According to Peterson, the execution of this instrument was without any type of force or duress upon appellant and he fully understood what he was doing. This waiver was executed according to its terms at 5:15 p.m. Peterson talked with appellant further and according to Peterson, appellant admitted that he killed Mrs. Ladner and would write a confession statement. Sheriff Ladner and Officer Price were then called into the room. Peterson and the others witnessed the writing of the statement by appellant with a pen and in his own handwriting. The statement set out details of what occurred when Mrs. Ladner was killed, including the shooting with a .22 caliber pistol using .22 long hollow points, and the fact that the young child was struck by mistake. According to his statement, he then set the house on fire and walked back home. He gave the time as about 1:30 a.m. and he reached home at about 2:15 or 2:30 and put the gun in a closet and went to bed.

After Peterson’s testimony the state rested its presentation of evidence on the motion to suppress. Defendant placed on the stand Officer Robert M. Mote, whose connection with the matter has already been developed. Officer Mote reiterated that he was first contacted by the Navy Investigative Service representative in Gulfport. Later he talked by telephone with Chief Deputy Peterson regarding the trip of the officers to Portsmouth and that appellant would be available. His testimony was that prior to the officers coming to Virginia, he had only told appellant he was being investigated for arson. He was requested to do this by Officer Peterson. After the Mississippi officers had talked with appellant for about two hours, Mote was advised that appellant wished to talk with a Navy representative. Officer Mote went into the room with appellant and the Mississippi officers stayed outside. Mote talked with appellant, according to him, for fifteen or twenty minutes. Mote secured from appellant a Navy form waiver of rights, which is similar to the form ordinarily used by law enforcement officials and advised appellant, among other things, that he had the right to remain silent and had the right to consult with a lawyer and have the lawyer present during the interview. This was signed by appellant at 3:50 p.m. and witnessed by Officer Mote and Officer Donovan. Mote testified that appellant asked if he could talk with a Navy attorney. Mote advised appellant that the matter was solely a civil matter and not service connected; therefore, he could not be furnished a Navy lawyer, but he could have a civilian lawyer. According to Mote, appellant advised him that he did not want a civilian lawyer. Mote suggested to appellant that he accompany the officers back to Mississippi to try to straighten out the entire matter. Mote admitted that he and appellant principally were talking about the arson charge at that time. Appellant agreed with Mote that he should accompany the officers back to Mississippi. He then signed a typewritten statement in which he stated that he would voluntarily agree to accompany the Mississippi officers to Hancock County for questioning in a criminal matter. The instrument further stated he had been advised of his right against self-incrimination and the action was freely and voluntarily done on his part. It stated that he had been advised that they wished to question him concerning an arson that occurred in Hancock County. After initialling two typographical errors in the statement, appellant signed it; the same as he had done on the other three instruments. This was sworn to by Officer Mote, an official authorized to administer oaths.

Mote testified that, after he had left the room and the officers again talked with appellant, he was advised that appellant had executed a confession.

Officer Joe Price was called as a witness for the defendant. His brief testimony corroborated that of Officer Peterson.

Appellant did not testify on the motion to suppress. He did testify at the trial. The gist of his testimony, giving the reason for executing the confession in Virginia, was that he did not want the officers to search the apartment where he and others lived because his roommates had marijuana in the apartment. He also testified that his reason for executing the confession was that he did not want his father’s house to be searched. Appellant contends that the confession was the product of intense, albeit, subtle pressure in violation of the appellant’s right to be free from self-incrimination under the Constitutions of the United States and the State of Mississippi. He further contends that the confession was attended by open and orchestrated deceit and corrupt acts.

In the first place in determining whether or not the lower court erroneously overruled the motion to suppress the confession, we should look only to the evidence presented at the pre-trial hearing. As hereinbe-fore stated, appellant offered no evidence whatever to the uncontradicted proof that his confession was freely and voluntarily given, and he was not subject to any abuse or coercion whatever. In fact, even in his testimony at the trial, appellant gave no evidence that he was in any way abused. His contention was that he was coerced in a subtle manner. Without discussing the testimony at the trial in detail, if all of it had been given at the hearing on the suppression motion, there would have been a clear question for the lower court as to whether the confession was voluntarily made. There might have been some small items of conflict, but the overwhelming evidence was that the confession was freely and voluntarily made. Certainly, the lower court was not in error in finding under its discretion that the motion to suppress should have been overruled. Clemons v. State, 316 So.2d 252 (Miss.1975).

Appellant contends that he gave the confession without the benefit of legal advice. The only evidence that he can produce in this contention is the hereinabove discussed request to Officer Mote to allow him to talk with a Navy lawyer. We have heretofore seen that the proof is undisputed that he was offered a civil lawyer and refused such offer. In considering whether or not the request for a Navy lawyer and the advice to him that a Navy lawyer could not be furnished in a civil matter, we have to look at the totality of the evidence. There could have been no other holding but that the evidence is overwhelming that after this request, appellant “knowingly and intelligently” waived his rights to an attorney by stating to both naval officers and the three Mississippi officers, both orally and in writing, that he did not wish a civilian attorney. This waiver was clearly set out by this Court in Jordan v. State, 365 So.2d 1198 (Miss.1978). Also see: Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) and Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979).

II. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE EVIDENCE REGARDING THE SEARCH AND THE RESULTS THEREOF OF THE HOME OF EIDO DEPREO, APPELLANT’S FATHER.

Appellant contends that the affidavit in support of the search warrant failed to state with sufficient particularity the factual basis of the credibility of the informants or sources who filed the information therein and failed to state sufficient facts.

It is further contended that the affidavit contained both innocent and intentional misrepresentations.

In the first place, the record does not contain the affidavit for the search warrant. The burden was on appellant to examine the record and ascertain that this exhibit was forwarded to the Court. Under the prior opinions of this Court, we could dispose of this contention on this ground, but we do not do so.

In making a thorough study of the lengthy record in the case, we find at the hearing on the motion to suppress the fruits of the search warrant of the house owned and occupied by appellant’s father, the affidavit actually was introduced in evidence by the state. The district attorney stated into the record “May we have marked as state’s exhibit number next, affidavit for a search warrant which has attached to it the underlying facts and circumstances for the purpose of- this motion.” As a result of this request the court allowed that document to be marked as state’s Exhibit No. 8. This exhibit does not appear in the record. Appellant attached to his abstract of the record a photostatic copy of the exhibit and although technically not required to do so, we accept that instrument marked “Exhibit 8” as a part of the appellant’s appeal.

On appellant’s motion to suppress the fruits of the search of his father’s home, which fruit consisted of a .22 caliber revolver with three spent shells, in addition to other guns, revolvers and pistols, appellant called Philip M. Ladner, an investigator for the Mississippi Highway Patrol. Ladner testified that he and Investigator Naylor made the affidavit for the search warrant and that the affidavit and accompanying underlying facts and circumstances were sworn to by both. This is verified by the exhibit attached to appellant’s abstract as above stated. Ladner testified that in addition to the affidavit and its attachment, he went into more facts with Judge Logan, then a circuit judge. He talked with Judge Logan at length. He testified regarding his contact with Brother Joseph of the school where the alleged arson occurred. He testified that prior to completing the affidavit he listened to the tape that the doctor had made with the six-year-old daughter shortly after the incident occurred in which the daughter stated that the man doing the shooting was “Chuck” and had dark brown hair. A contention is made that the young girl immediately after the incident stated the man had blonde hair. The affidavit was made based on the child’s statement after minor hypnosis and questioning by a child psychologist and other such experts.

Appellant next called T. P. Naylor, also an investigator with the Mississippi Highway Patrol. He testified that he and Lad-ner were assisted in securing the information by two deputies Bernard and Seay, but that just he and Ladner appeared before Judge Logan. Both were put under oath by Judge Logan and questioned extensively by him, in addition to having the affidavit and its attachments. Naylor had participated personally in all pf the matters set out in the affidavit and told Judge Logan of all except those expressly handled by Officer Ladner. The officers were searching for a .22 caliber pistol that was the type of weapon that killed Mrs. Ladner and was the type that the young daughter picked out from the pistols as the type she saw being held by “Chuck.”

At the outset, a reading of the affidavit for the search warrant, together with the attachments giving a brief history of the entire matter and the underlying facts and circumstances, and the undisputed interrogation of both officers by Judge Logan, clearly showed probable cause for the issuance of the search warrant.

Another issue raised in the appeal which needs to be discussed is whether or not appellant had standing to contest the issuance of the search warrant. As stated above, even if he did have such standing, there clearly was probable cause for it to be issued. As heretofore seen, appellant had been a Navy service personnel for approximately a year prior to the homicide. He was living in an apartment in Portsmouth, Virginia. Admittedly, during the 1977 Christmas holidays, he had visited his parents who had separated. As stated, the father was still living in the house. Appellant came home on leave again in April 1978, and was staying with his father in the latter’s house when the homicide occurred. There can be no doubt but that the house was owned and occupied by the father Eido Depreo. The United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), merged the concept of standing into “a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect,” and that in making this determination the challenger must show that he has a “legitimate expectation of privacy in the place searched and things seized.” In Rakas, the Court further stated:

As we stated in Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969); “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” See Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968); Wong Sun v. United States, 371 U.S. 471, 492, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963); cf. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734, 97 A.L.R.2d 1277 (1961); Gouled v. United States, 255 U.S. 298, 304, 41 S.Ct. 261, 263, 65 L.Ed. 647 (1921). A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. Alderman, supra, at 174, 89 S.Ct. at 966, 22 L.Ed.2d 176. (439 U.S. 133-134, 99 S.Ct. 425, 58 L.Ed.2d 394-395).

We heretofore have seen that the only evidence offered on the motion to suppress the fruits of the search was the testimony of the two officers who handled the securing of the warrant. Again, as in the motion to suppress the confession, the appellant did not testify. As stated, it developed at the trial that he had come to his father’s house on two leaves since leaving for service in the Navy. During the April 1978 leave he stayed part-time at his mother’s apartment. Admittedly, the guns found in the search belonged to the father and were kept in the father’s closet in a box. It is clear that appellant did not show a “legitimate expectation of privacy” or that the search had “infringed an interest” of appellant. We therefore hold that not only did the appellant fail to show “standing” to object to the search, as that term was in force prior to Rakas, supra, but he further failed to show the requirements set out in Rakas. Assignment of Error No. II is therefore without merit.

III. THE TRIAL COURT ERRED IN FAILING TO GRANT A HEARING ON APPELLANT’S SPECIAL BILL OF EXCEPTIONS.

Appellant’s trial was had at the January 1979 term of Circuit Court in Hancock County, which is a three-week term beginning the second Monday in January. The trial ended on January 27, 1979, with the jury verdict of guilty. The judgment and sentence of the court were entered on the same day. On that same day the appellant filed his motion for a new trial, stating only that the verdict is “against the clear weight of the evidence.” On that same day, appellant filed a document entitled “Motion in Forma Pauperis for a Free Trial Transcript.” This motion was approved by the trial judge and filed on the same day. The court overruled the motion for new trial and entered an order allowing appellant’s appeal without prepayment of costs and without the filing of a cost bond.

By letter dated January 29, 1979, appellant’s attorney notified the official court reporter to transcribe the testimony. For some reason this notice was not filed until March 12, 1979, but well within the appeal period.

On September 2, 1980, appellant’s attorney filed two affidavits dated August 28, 1980, stating that on June 26, 1979, they had delivered an instrument styled “Special Bill of Exceptions” to the office of the Circuit Clerk of Hancock County, Mississippi. This special bill of exceptions alleged certain irregularities in the conduct of the jury and the sequestration of the jury and asked for a hearing on this instrument by the trial court. It is obvious from the record that for some reason the docket did not show the instrument being filed on June 26, 1979, but it obviously was so filed, as in the record there is a letter dated June 29, 1979, from the trial court to appellant’s attorney stating the following: “Your motion for a new trial styled ‘Special Bill of Exceptions’, a copy of which was enclosed with your letter of June 27, cannot be considered by the circuit court while the case is on appeal to the Supreme Court. An appeal divests the court of jurisdiction. There is no such thing as divided jurisdiction.”

It is obvious that the filing of the instrument on June 26,1979, was after the appeal had been perfected to this Court and therefore the lower court was entirely correct in holding that it had no jurisdiction to hear the instrument filed. Denton v. Maples, 394 So.2d 895 (Miss.1981); Edmonds v. Delta Democrat Publishing Co., 221 Miss. 785, 75 So.2d 73 (1954).

It is therefore apparent that the third and final assignment of error is without merit. In the event appellant has merit in the allegations in his instrument filed, after the appeal was perfected, he has adequate recourse to present those contentions at the proper time and place.

Going further from the specific assignments of error, we carefully have studied the entire record in this cause and can only come to the conclusion that the record shows evidence sufficient for the jury to have found appellant guilty of murdering Mrs. Ladner.

AFFIRMED.

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