author: WALKER, Justice, HAWKINS, Justice,

text:
    In re Removal of Lloyd W. ANDERSON, Justice Court Judge.
    No. 53190.
    Supreme Court of Mississippi.
    April 7, 1982.
    Wells, Wells Marble & Hurst, Erskine W. Wells, Charles P. Quarterman, Jackson, for Mississippi Commission on Judicial Performance.
    Gex, Gex & Phillips, Walter J. Gex, III, Joseph H. Benvenutti, Bay St. Louis, for Lloyd W. Anderson.
   WALKER, Justice,

for the Court:

This case is before us upon the recommendation of the Mississippi Commission on Judicial Performance that Lloyd W. Anderson, a Justice Court Judge of District Three, Hancock County, be removed from office.

We concur with the finding of the Commission that the conduct of Anderson constituted willful misconduct in office. We also accept the recommendation of the Commission that Anderson be removed from office and direct his removal.

By concurrent resolution passed in 1979, the Legislature submitted to the people a proposed amendment to Article 6 of the Mississippi Constitution of 1890 by adding Section 177A, which was ratified by the electorate November 6,1979, and thereafter became a part of our State Constitution.

Section 177A directs the formation of a Commission on Judicial Performance of this State, which is composed of seven members: three judges of courts of record, which are trial courts of original jurisdiction; one judge of a justice court; two resident lay persons who have never held judicial office or been members of the Mississippi Bar; and one practicing attorney.

After directing the formation of the Commission and the composition of its membership, Section 177A reads, in part, as follows:

On recommendation of the commission on judicial performance, the supreme court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.
All proceedings before the commission shall be confidential, except upon unanimous vote of the commission. After a recommendation of removal or public reprimand of any justice or judge is filed with the clerk of the supreme court, the charges and recommendations of the commission shall be made public. The commission may, with two-thirds (%) of the members concurring, recommend to the supreme court the temporary suspension of any justice or judge against whom formal charges are pending. All proceedings before the supreme court under the section and any final decisions made by the supreme court shall be made public as in other cases at law.

The provisions of Section 177A have been implemented by legislative enactments providing for a commission on judicial performance, the terms of office of its members, authority as to procedures before it, and its administration. Miss.Laws, ch. 511 (1979); Miss.Laws, ch. 385 (1980) (codified at Mississippi Code Annotated § 9-19-1 et seq. (Supp.1981)).

Mississippi Code Annotated section 9-19-17 provides:

A justice or judge removed by the supreme court or the seven-member tribunal is ineligible for judicial office. . . .

A Mississippi Commission on Judicial Performance was duly appointed and constituted. Pursuant to authority granted under Mississippi Code Annotated section 9-19-23 (Supp.1981), the Commission adopted rules implementing the legislative enactment, including rules of practice and procedure before it, which were approved by order of this Court on July 9, 1980. The complete rules of the Commission are recorded in 385 So.2d at XXII-XXXV.

Rule 8D provides:

Facts requiring action of the Commission shall be established by clear and convincing evidence... .

Rule 8F provides:

The Commission recommendations to the Supreme Court for discipine [sic] may include removal from office, suspension, fine, public censure or reprimand, or retirement. In addition, the Commission may privately admonish a judge as provided by law....

Rule 10 provides for the prompt filing of the record, the findings and recommendations of the Commission with this Court, the briefs of the parties, and our review.

Rule 10E contains the scope of our review:

Based upon a review of the entire record, the Supreme Court shall prepare and publish a written opinion and judgment directing such disciplinary action, if any, as it finds just and proper. The Supreme Court may accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission. In the event that more than one (1) recommendation for discipline of the judge is filed, the Supreme Court may render a single decision or impose a single sanction with respect to all recommendations.

There are two types of official conduct condemned by Section 177A:

(b) willful misconduct in office; and
(e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

Courts in other jurisdictions with constitutional provisions as our own Section 177A have attempted to construe these provisions.

The North Carolina Supreme Court had occasion to state in the case of In re Peoples, 296 N.C. 109, 250 S.E.2d 890, 918 (1978):

We have heretofore attempted to define wilful misconduct and conduct prejudicial to the administration of justice in general terms.. .. Like fraud, however, these terms are “so multiform” as to admit of no precise rules or definition. .. .

The North Carolina Supreme Court in the case of In re Nowell, 293 N.C. 235, 237 S.E.2d 246, 255 (1977), reiterated the definitions of the California Supreme Court:

Willful misconduct in office is the improper or wrongful use of the power of his office by a judge acting intentionally, or with gross unconcern for his conduct, and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith. ... •
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. (Emphasis theirs).

Based upon its facts and findings, the Commission unanimously found upon clear and convincing evidence that Anderson’s conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute as set forth in Section 177A.

By a vote of five to two the Commission recommends this Court remove Anderson from the office of Justice Court Judge, District 3, Hancock County, Mississippi as provided by Section 177A of the Mississippi Constitution. One dissent as to the recommendation of penalty to be imposed recommends that Anderson be suspended from his present office for a period of ten years. The other dissent would have found the charges against Anderson as to Torrence and Ligón were not sustained by clear and convincing evidence, and recommends that Anderson be suspended from office for a period of six and one-half years.

Rule 3H to the Commission provides a two-thirds vote of the Commission shall be required for any action pertaining to its disciplinary authority.

Section 177A does not give the Commission power to actually impose any sanction against a judicial officer, but simply to recommend.

Also Rule 10E of the Commission above quoted empowers this Court to accept, reject or modify, in whole or in part, the findings and recommendations of the Commission.

Therefore, it appears we are required to be a factfinding body, at least to some degree, in every case of this nature. California’s constitutional provision is almost identical to our Section 177A. We believe the standard announced by the Supreme Court of California in Geiler v. Commission on Judicial Performance, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1, 4 (1973), is the standard we should adopt in this State for review by the tribunal:

[Cjince the ultimate, dispositive decision to censure or remove a judge has been entrusted to this court, we conclude that in exercising that authority and in meeting our responsibility we must make our own, independent evaluation of the record evidence adduced below. After conducting such a review we may then decide as a question of law whether certain conduct, which we may have found as a fact to have occurred, was “wilful misconduct in office” or “conduct prejudicial to the administration of justice that brings the judicial office into disrepute . .. . ” Finally, it is to be our findings of fact and conclusions of law, upon which we are to make our determination of the ultimate action to be taken, to wit, whether we should dismiss the proceedings or order the judge concerned censured or removed from office.

See also In re Haddad, 128 Ariz. 490, 627 P.2d 221 (1981); West Virginia Judicial Inquiry Commission v. Dostert, 271 S.E.2d 427 (W.Va.1980); In re Jordan, 290 Or. 303, 622 P.2d 297 (1981); In re Cieminski, 270 N.W.2d 321 (N.D.1978); In re Nowell, supra; In re Brown, 512 S.W.2d 317, 320 (Tex.1974).

The power to impose sanctions is delegated solely to this Court; it therefore follows we have an obligation to conduct an independent inquiry of the record in order to make our final determination of the appropriate action to be taken in each case. In so doing, we will accord careful consideration the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.

On December 8, 1980, the Commission, acting through its executive director, initiated a written, formal complaint against the respondent Lloyd W. Anderson, official justice court judge of District Three, Hancock County. The complaint is in the form of a chancery court bill of complaint, and sets forth in detail all acts of misconduct upon which proof was offered at the hearing. Proper notice was given to Anderson, an answer was filed on January 15,1981, and a hearing was held before a committee of the Commission on April 9, 1981.

We first deal with the conduct of Anderson in charging traffic violators a greater sum to be paid as a fine than that officially reported and paid to the county.

Cecil Jones, investigator with the State Department of Audit, interviewed Anderson in June, 1979, on the complaint of Gary M. Cooke’s mother, a Florida resident, that she had upon demand paid her son’s fine twice. The first payment was a $33.00 money order signed and cashed by Anderson, with no credit given to Cooke. A few weeks later a $35.00 money order was mailed to Anderson, for which he gave official credit of $31.00. At first Anderson’s explanation was that it was a mistake, and upon further questioning he stated he sometimes charged a “late fee.” According to Jones, when he asked Anderson what authority he had for charging a late fee, he received no answer, and when asked who got the money for the late fee, Anderson became a little nervous, turned away, and said he would rather not talk about it any more.

Thereafter, Jones was assigned to do an investigation of Anderson’s office, and called upon him again August 27, 1979, to get the necessary paperwork, including court dockets and traffic tickets. At Jones’ request, Anderson delivered approximately 225 traffic tickets issued during the months of April, May, and June of 1979. Only 105 of these tickets were legible. Letters were mailed on these 105 tickets requesting the violators to reply with an explanation of how much they had paid, and to whom. Thirty-three letters were returned undelivered because the addressee was unknown or moved, or for similar reasons. Fifteen replied they had paid a fine, but did not send proof of payment.

Of 72 recipients of traffic tickets, Jones received written documentation from 35 of the amount paid. All showed overpay-ments. In the vast majority of instances, Anderson had charged the violator $33.00, while reporting $31.00 to the county. There were two instances of charging $35.00 while reporting $31.00, two of charging $39.00 while reporting $35.00, one of charging $39.00 while reporting $33.00, and an instance of collecting $70.00 while reporting $31.00. Also, he collected $99.00 from the employer of three defendants, but only reported $31.00 to the county, leaving $68.00 unpaid. Attached to this opinion as Appendix “A” is a schedule of these overpay-ments.

While Anderson received these amounts in fines (in most of the instances upon written demand specifying the amount), he or his office would prepare and transmit an official receipt to the violator for the lesser amount. Also, the justice court dockets showed Anderson had received the lesser amount. Finally, in his official reports to the Chancery Clerk of Hancock County itemizing the fines collected for the previous month, which he was required by law to make on or before the first Monday of each month, Anderson reported receipt of the lesser sum. In this manner, Anderson failed to report a total of $214.00 for these particular tickets, retaining and converting this sum to his own use.

In his answer Anderson alleged that he received a total of 5,346 traffic citations in 1979, and that for the months of April, May, June, 1979, his office handled 1,118. His defense was that these overcharges were mistakes. His wife testified she did most of the major bookkeeping except during the months of April, May and June, 1979, when she was sick and assisted by her sister-in-law. The sister-in-law did not testify.

The only tickets on which any investigation was made were those furnished by Anderson to Jones, the field investigator for the Auditing Department. The record made before the Commission reveals a clear, consistent pattern of petty embezzle-ments totaling $214.00. Anderson handled a very heavy volume of tickets, according to his answer. If the processing of the tickets furnished Jones had been errors in bookkeeping by his sister-in-law, he had every opportunity to present to the Commission records of other fines levied to show a pattern of rectitude on the part of himself and his office. No such proof was offered by him.

We concur in the finding of fact of the Commission that by clear and convincing evidence Anderson was shown to have violated the following duties imposed upon him by law and the Code of Judicial Conduct.

(1) Anderson unlawfully converted $214.00 in public money to his own use, failed to keep an accurate entry of each and every sum of public money he received, and willfully and fraudulently made false entries on his monthly report and claim form and certified the same was genuine, when not genuine, in violation of Mississippi Code Annotated section 97-11-29 (Supp.1981).

(2) Anderson violated the statutory duty imposed upon him as a justice court judge by Mississippi Code Annotated section 97— 11-29 (Supp.1981), to account for all fines imposed by him to the clerk of the board of supervisors and to pay the monies into the county treasury.

(3) This conduct violated Canons 1, 2A and 3B of the Code of Judicial Conduct of Mississippi Judges.

The Canons the Commission found Anderson to have violated are attached as Appendix “B” to this opinion.

The Commission also found misconduct with regard to the manner in which Anderson handled two traffic tickets presented him by Officer Silkwood, a Mississippi Highway Safety Patrolman. One concerned a Mr. Torrence and the other a Mr. Ligón.

In each case the underlying question involved the constitutional guarantees of due process. See Article 3, Sections 14 and 26, Mississippi Constitution of 1890. Many volumes have been written attempting to define these rights. Lawyers, judges, and legal scholars are very often in disagreement as to their applicability in a given fact situation. Absent proof of malice or ill will, the question of due process should be remedied, if necessary, by appeal or otherwise and not through disciplinary proceedings.

We are of the further opinion that the improper handling of the Torrence and Ligón cases was not of such magnitude as to constitute “conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” Mr. Torrence and Mr. Ligón were understandably unhappy when they learned that speeding convictions had been entered against them, (but suspended) when they thought that the highway patrolman was “giving them another chance” and that the matter would not go before any court. However, Anderson explained that the highway patrolman said he told Torrence and Ligón that he would give them another chance and ask the justice court judge (Anderson) to suspend the sentences, which is what Anderson did. The patrolman did not testify.

Our justice court system, particularly with regard to traffic violations, operates in a layman oriented, non-technical atmosphere and errors are going to occur. However, dishonesty is not to be tolerated and without considering the incidents involving Torrence and Ligón, there remains sufficient grounds for the removal of Anderson as heretofore discussed.

Therefore, the recommendations of the Commission that Lloyd W. Anderson be removed from office as Justice Court Judge of District Three of Hancock County is accepted, and his removal is so ordered and directed upon the filing of this opinion.

REMOVAL OF LLOYD W. ANDERSON AS JUSTICE COURT JUDGE OF DISTRICT THREE OF HANCOCK COUNTY IS HEREBY ORDERED AND DIRECTED THIS DATE.

PATTERSON, C. J., SUGG, P. J., and ROY NOBLE LEE, BOWLING and DAN LEE, JJ., concur.

HAWKINS, BROOM and DARDEN, JJ., specially concur.

APPENDIX A

DISPOSITION OF UNIFORM TRAFFIC CITATIONS BY JUSTICE COURT JUDGE

LLOYD W. ANDERSON

APPENDIX B

CANON 1

A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

CANON 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

CANON 3

A Judge Should Perform the Duties of His Office Impartially and Diligently

The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:

B. Administrative Responsibilities

(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

(2) A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him.

(3) A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.

HAWKINS, Justice,

specially concurring:

I concur in the result reached by the majority of the Court, but I cannot concur with this majority’s benign characterization of Anderson’s misconduct regarding his court’s treatment of Ligón and Torrence.

Of course, if the entire case against him consisted only of these two instances, I do not believe the Commission would have recommended his removal. Yet the Commission had the responsibility of considering this conduct in connection with his other misconduct, and did so. In my view the Commission was eminently correct in finding Anderson’s action regarding Ligón and Torrence was not only conduct prejudicial to the administration of justice that brings the judicial office into disrepute, but willful misconduct also. This Court’s inability to so construe his conduct astounds me.

The Commission on Judicial Performance is composed of three trial judges of courts of record in this state, a justice court judge, two laymen, and a practicing attorney. With but one dissent, this body of distinguished Mississippians found Anderson’s conduct (as to Ligón and Torrence) to be not only conduct prejudicial to the administration of justice that brings the judicial office into disrepute, but willful misconduct as well. Yet this Court with a dismaying naivete does not see anything particularly wrong with this conduct.

Prefatory to discussing these two cases, I believe some supplement to the background of Section 177A of the Mississippi Constitution to that set forth in the majority opinion is in order. This case involves a novel procedure for this Court, and clear guidelines need to be staked out.

Under the provisions of Section 177A all judicial officers, exclusive of members of this Court, are subject to removal or having lesser sanctions imposed against them by this Court on the recommendation of the Commission. Also, members of the Mississippi Supreme Court are subject to removal or lesser sanctions by a tribunal of seven trial court judges upon recommendation of the Commission.

It can thus be observed no judicial officer of this State, including any member of this Court, is immune from having his or her official conduct investigated by the Commission, and appropriate action taken by an impartial tribunal. This should certainly be a salutary development in the administration of justice for our people.

THE TORRENCE AND LIGON CASES

Keith J. Torrence, a Jackson resident, while on his honeymoon, was stopped on June 30,1979, by Officer Silkwood on Interstate 10 in Hancock County. Both Torrence and Silkwood got out of their vehicles, Tor-rence handed Silkwood his driver’s license and was told he was speeding. When Tor-rence told Silkwood he was on his honeymoon, Silkwood gave him a verbal warning and returned his license, but did not give him any ticket.

James G. Ligón, a resident of Grenada, was also stopped by Silkwood on Interstate 10 on July 22, 1979. Silkwood began writing Ligón a ticket but stopped, and instead warned Ligón to take it easy and slow down. Ligón also left without Silkwood giving him the ticket.

Silkwood did not testify at the hearing, and according to Anderson, Silkwood presented him with an original and a copy of the tickets made out against both individuals. The original of the ticket was supposed to have been delivered to the violator when he was stopped for the offense, and Anderson knew that in both eases tickets had not been delivered either to Tor-rence or Ligón.

Nevertheless, he found them both guilty of speeding and suspended the sentences. An entry to this effect was made on his docket and on both tickets (including the copies forwarded to the Department of Public Safety). Torrence was found guilty on July 16,1979; Ligón was found guilty on September 10, 1979. Also, on his claim to the chancery clerk he noted both had been found guilty with suspended sentences, and requested payments of $10.00 costs in both cases.

In January, 1980, Ligón was astonished to receive a notice from the Department of Public Safety that his driver’s license had been suspended and that a warrant had been issued for his arrest for failure to appear in court. He immediately called the Department, and learned that the notice was issued because of his failure to appear before Anderson in response to a ticket that Officer Silkwood had turned in.

Torrence learned of the proceedings before Anderson when questioned by a newspaper reporter about it.

Anderson’s only explanation of his conduct as to Torrence and Ligón is set forth in his answer to request for admissions. He answered therein that neither Torrence nor Ligón appeared before him, that he had found them both guilty and had suspended their sentences in connection with the tickets. The following request for admission was also addressed to him:

5. That you never gave either Mr. Tor-rence or Mr. Ligón notice of any proceeding in connection with said tickets prior to said guilty finding, or gave them any opportunity to appear before you at a definite time and place.

He replied as follows:

5. True, Silkwood requested the tickets be suspended, that the defendants had pleaded guilty and were on a emergency run. Silkwood told me that after he gave them the tickets, and understanding their problems, he then took the tickets back, after they pleaded for help. He then told them he would recommend to the Judge that the tickets be suspended. He then told them, if they didn’t hear anything from the Judge within a few days, the ticket would be suspended. This is what Silk-wood told me.

I think the Commission’s fairness was demonstrated in that even though other charges were brought against Anderson, the Commission found that Anderson’s knowing participation in these alleged irregularities was not established by clear and convincing evidence.

OFFICIAL MISCONDUCT

This case involves two types of official conduct condemned by Section 177A:

(b) willful misconduct in office, and
(e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

Language this plain defies attempts to make its meaning clearer. Nevertheless, courts in other jurisdictions with constitutional provisions similar to our own Section 177A have endeavored to do so. The majority opinion gives samples of such efforts.

Courts, after all, are human institutions. The imperfections of mankind unfortunately assure so many varied types of perversion of the true and proper function of all courts, that it is impossible to encompass them in one single concrete definition. They have existed in myriad variety and will continue until the impurities of the human heart have been leached out.

Fortunately (if not miraculously), balanced against these ills are fundamental concepts of fair play, justice, and certitude, which have been ingrained in most civilized nations through the Holy Bible, other religious teachings, and their evolving laws over the centuries.

Therefore, while we may have difficulty making in the abstract any clearer expression of “willful misconduct of office,” or “conduct prejudicial to the administration of justice that brings the judicial office into disrepute,” than the words themselves, to point out and identify an offender, it probably is unnecessary. We can generally recognize examples of such conduct when it is displayed before us.

We can admire and commend the helpful definitions of our sister states as they have grappled to give further meaning to the language contained in Section 177A, yet the infinite variables in human character and conduct caution us to ever bear in mind the ultimate determination of necessity must depend on the facts of each case.

LAW AS TO THE TORRENCE AND LIGON CASES

Article 3, Section 14 of our Mississippi Constitution reads:

No person shall be deprived of life, liberty or property except by due process of law.

Article 3, Section 26 of our Mississippi Constitution provides:

In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed ....

These two constitutional provisions embrace fundamental principles of fairness which have prevailed in all court systems in this country and Great Britain for centuries. Any high school civics class student should be aware no person can lawfully be deprived of property or liberty without a trial, and a fair and adequate notice beforehand of the time and place for such trial so that he can know the nature of the case against him, and have reasonable opportunity to prepare his defense.

To find Torrence and Ligón guilty and make a public entry of such findings on his official docket, when neither of them had any notice or knowledge of the proceedings against them, in my view was as gross a violation of Sections 14 and 26 of our Mississippi Constitution as can be envisioned.

It is true they were minor cases, and also true their fines (the amount not being stated) were “suspended.” Nevertheless, this Court can observe two possible invidious consequences: (1) notice of the conviction is forwarded to the Mississippi Highway Safety Patrol for its records, possibly precipitating the suspension or revocation of one’s license; and (2) the insurance carrier could choose to place such individual in a higher risk category. Indeed, as in Ligon’s case, he received notice from the Highway Safety Patrol that his license had been suspended and that a warrant had been issued for nonpayment of his fine.

While it is true justice court judges for the most part are not lawyers, and are not bound by the same formality as higher courts, the constitutional rights of any citizen are not lessened in any degree simply because his case happens to be in justice court. Justice court judges must be constantly aware that constitutional rights are not to be gauged by the court in which a litigant finds himself, and I am convinced the overwhelming majority of justice court judges recognize this responsibility. Justice court judges attend seminars, are provided ample information and are afforded virtually unlimited sources of counsel and advice to enable them in simple cases to give fair and impartial trials.

I can place no credence in any claim of ignorance as an excuse for Anderson’s handling of these two cases.

When Anderson took the witness stand in his own defense, he produced for the first time criminal affidavits signed by Silkwood before him against Torrence and Ligón, each charging the defendant with speeding. The filing of these affidavits before him made it mandatory under Miss.Code Ann. § 99-33-3 (Supp.1981) that he issue a warrant for the arrest of the defendant and try and dispose of each case according to law. The conviction of these two defendants without any hearing after criminal affidavits had been lodged against each made Anderson’s violation of their rights even more egregious.

If such handling had resulted in no financial benefit to him, Anderson’s conduct would in my opinion have been conduct prejudicial to the administration of justice which brings the judicial office into disrepute as condemned by Section 177A. To me such conclusion, is inescapable from the clear words of the Constitution.

Anderson handled the two citations in such a way, however, to enrich his own pocket at the expense of the taxpayers of Hancock County. He made claim upon and collected $10.00 from the county in each case. Ligón and Torrence were injured, the taxpayers of Hancock County were injured in having to pay $20.00 for nothing, and the only person to benefit was Anderson. He pocketed $20.00 from these transactions. This constituted bad faith on his part and in my opinion constituted willful misconduct in office as condemned by Section 177A.

In conclusion, I am compelled to reiterate what I stated in the beginning, it is simply incomprehensible to me that Anderson’s conduct cannot be seen by the majority as prejudicial to the administration of justice, and the kind of conduct that brings our judicial system into disrepute (If I am mistaken, then it follows his conduct did not harm the administration of justice).

Also, when taken in conjunction with his numerous petty embezzlements, the conclusion is inescapable, at least to me, that this action was in bad faith in an effort to collect $20.00 from Hancock County.

In my view, the majority of this Court has simply ignored the plain and unambiguous wording of our Constitution.

It is a matter of common knowledge that the justice court system is the subject of great criticism, and at times has been considered by many citizens of this country a farce. The overwhelming majority of the justice court judges in this state are today making every effort to improve the administration of justice in their courts, and strictly adhere to the law. This Court renders no service to the justice court system and to the overwhelming majority of competent justice court judges, when it takes a paternalistic view of the system, and lightly criticizes the conduct of Anderson. It is this very sort of conduct which has brought so much trouble to the justice court system, and which the justice court judges themselves are attempting to weed out.

Furthermore, to take lightly what six members of the Commission on Judicial Performance took very seriously will no doubt make these members ponder whether their efforts are worthwhile.

In accepting the findings of the Commission as to Anderson’s embezzlement, this Court has only recognized the obvious.

The other misconduct of Anderson is somewhat more subtle and insidious, but that does not mean practices of this sort do not exist, or that they cannot permeate the justice court system without the strongest condemnation from this Court, and consequent sanctions where needed.

The majority chooses to view Anderson’s treatment of the Ligón and Torrence cases lightly; I cannot.

BROOM and DARDEN, JJ., join in this specially concurring opinion.

      . As to a member of the Mississippi Supreme Court, the fourth paragraph of this section states:
      A recommendation of the commission on judicial performance for the censure, removal or retirement of a justice of the supreme court shall be determined by a tribunal of seven (7) judges selected by lot from a list consisting of all the circuit and chancery .indgr- at •> public drawing by the secretary of state. The vote of the tribunal to censure, remove or retire a justice of the supreme court shall be by secret ballot and only upon two-thirds (2A) vote of the tribunal.

      . Beginning with California in 1960, at least 33 states have authorized judicial performance commission, most of them by constitutional amendment, as we have in Mississippi. This is a recognition by the bench, the bar and the public of the vital importance to our society of competent and impartially administered courts. It is to their credit that those most actively concerned with the formation of commissions and enforceable standards of performance in office have been the judicial branches themselves of the various states.
      The history of judicial discipline, guidelines for procedure under judicial performance commissions, and responsibility of the bench and bar, are set forth in Judicial Discipline and Disability Symposium, 54 Chicago-Kent Law Rev. 1 (1977), and begins with the following explanation:
      Justice demands that lawyers, litigants and the public have confidence and trust in the judges who administer justice. As a consequence, there has been a concern throughout history with the honesty, courage and independence of the judiciary. This concern has been reflected in the universal requirement that judges be selected through methods that will assure they have those indispensable qualities. Judges are only human, however, and the methods of selection do not always guarantee their continued good behavior. To ensure the impartial administration of justice, fair and effective means of disciplining unfit judges are essential.

      . There were a number of alleged “fictitious” tickets, a suspicion aroused by non-existent addresses, numbered in certain patterns, and the times of birth of a number of supposed “recipients” of tickets. Of the tickets issued in a three day period a striking number were born in November, and of these, nine had birthdays on Armistice Day.

      . A sampling: Judicial commissions and courts in other jurisdictions have imposed sanctions against judges for: coarse, crude, salacious humor in conducting duties; ridiculing, as well as boorish behavior towards witnesses, or attorneys, usually in an attempt to intimidate; private or ex parte disposition of criminal cases contrary to wish of prosecution; suggestions to arresting or prosecuting officers that offenders (usually friends of judge) be given lighter sentence than facts of case justified; use of office for personal financial gain in business transactions; vindictive rulings and opinions; threats to counsel because of personal animosity of judge against attorney; perjury; embezzlement; lascivious habits off the bench.

      . Prior to the hearing Anderson was directed to produce official records, which would have included these two affidavits. They were never produced, however, until he took the stand in presenting his defense.


source: Caselaw Access Project

author: DAN M. LEE, Justice,

license: Public Domain

text:
    Freddie SPARKS v. STATE of Mississippi.
    No. 53130.
    Supreme Court of Mississippi.
    April 14, 1982.

      Roy 0. Parker & Associates, Nora J. Hall, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before SMITH, P. J., and WALKER and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Lowndes County wherein Freddie Sparks, defendant/appellant, was indicted, tried and convicted for the sale of a controlled substance, to-wit, cocaine. Upon conviction, Sparks was sentenced to serve twenty years in the Mississippi Department of Corrections and fined $10,000. We affirm. Sparks appeals his conviction and assigns the following errors:

1. The lower court erred in finding the appellant guilty in that the verdict was against the overwhelming weight of the evidence.

2. The lower court erred as a matter of law in permitting testimony as to the tape-recorded conversations when the tapes themselves would have been the best evidence.

3. The lower court erred as a matter of law in admitting tape recordings of the telephone conversations of April 5, 1979, where the individual conversing with the state’s witness was not identified.

Robert M. Turner and Captain Charles Spillers, agents for the Mississippi Bureau of Narcotics, were involved in an undercover operation in Lowndes County in March and April of 1979. Turner, who was using the name Mike, first contacted appellant by phone on April 1, 1979. After several conversations, appellant advised Turner he could supply one ounce of cocaine for $2500. Turner had no personal contact with the appellant other than by phone. Negotiations fell through on April 4 so agent Turner called the appellant again on April 5. Appellant agreed to contact agent Spillers by telephone at Spillers’ Tupelo number.

Spillers was contacted at approximately 8:45 a. m. on April 5. The caller identified himself as Mike’s friend. The caller refused to travel from Columbus to Tupelo and also requested that they deal through Mike. It was then agreed that Spillers would travel to Columbus where he would contact the caller at 327 — 2530 upon his arrival. The phone number given by the caller was listed to an Ernestine Sparks. This conversation was recorded.

When Spillers arrived at agent Turner’s home in Columbus, he called the number he had been given and spoke with the same person. The caller refused to meet with Spillers at McDonald’s but rather gave him directions to a meeting place and advised Spillers he would be standing outside waiting for him. This conversation was also recorded.

After Spillers’ second conversation, he and Turner proceeded to McDonald’s on Highway 82, followed by agent Gardner. Turner and Gardner remained at McDonald’s while Spillers, following the directions given him by the caller, proceeded to a residence on Hughes Road. Spillers pulled into the driveway of the residence at approximately 10:50 a. m. Appellant and Ernest Holliday were standing in the driveway. A Ford Ranchero registered to appellant was parked under the carport and a Lincoln Continental registered to Ernest Holliday was parked behind appellant’s automobile. Appellant walked up to Spil-lers’ window and confirmed the price for an ounce of cocaine at $2500. Spillers asked for a sample of the drug to test, whereupon appellant went into the residence and then returned with a ziplock baggie containing a small quantity of cocaine.

Spillers took the sample and returned to McDonald’s where a field test was performed revealing the substance to be cocaine. Spillers and Turner then proceeded back to the residence. Turner was let out of the vehicle at the intersection of Highway 69 and Hughes Road, some two to three hundred yards from the residence. When Spillers arrived at the residence, both vehicles were still in the driveway; however, Ernest Holliday was standing outside alone. Holliday approached Spillers’ window, whereupon Spillers indicated he was satisfied with the sample. Holliday then removed a ziplock baggie containing approximately one ounce of cocaine from his back pocket. He confirmed the price at $2500. The substance was weighed with a small hand scale produced by Holliday. Spillers handed Holliday $2500 in official state funds in payment for the substance. Spillers left the residence, picked up Turner and performed another field test which revealed the second baggie to contain cocaine. A subsequent chemical analysis of the drug revealed the substance weighed 32.1 grams.

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

Appellant contends the evidence presented in the case at bar created a doubt as to his guilt. In Sadler v. State, 407 So.2d 95 (Miss.1981), this Court stated:

Among the alleged errors assigned is that the trial court should have sustained Sadler’s motion for a new trial on the ground that the jury verdict was not supported by sufficient credible evidence.
Considering the evidence, as we must, in the light most favorable to the state and accepting as true the evidence supporting or tending to support the verdict, with all inferences supportive of the verdict that reasonably may be drawn therefrom, we find no merit in this contention. Glass v. State, 278 So.2d 384 (Miss.1973). In Spikes v. State, 302 So.2d 250 (Miss.1974), this Court said:
“On appeal, in this situation, in passing upon the sufficiency of evidence to support a verdict, this Court must accept as true the evidence which supports the verdict. Murphree v. State, 228 So.2d 599 (Miss.1969). [302 So.2d at 251].” (407 So.2d at 97)

The state’s evidence established that agent Turner arranged a cocaine buy with a subject at a telephone number of 327-2530. This number was listed to an Ernestine Sparks. The caller later contacted agent Spillers. Following the caller’s direction, Spillers drove to a residence where he met appellant and Ernest Holliday. Appellant’s automobile was parked in the carport. Appellant, upon Spillers’ request, retrieved a small amount of cocaine from the residence which was tested by agents Spillers and Turner. When Spillers returned to the residence, Holliday delivered the cocaine. Although appellant was not seen at the time, his vehicle was still parked in the carport.

When the evidence supporting the verdict is accepted as true together with all inferences supportive of the verdict that reasonably may be drawn therefrom, the evidence was sufficient to support the verdict of the jury.

II. Did the trial court err in permitting testimony as to the tape-recorded conversations when the tapes themselves would have been the best evidence?

In Talbert v. State, 347 So.2d 352 (Miss.1977), this Court held the best evidence rule applies only to documentary evidence. 29 Am.Jur.2d, Evidence section 436 (1967), provides in part:

Where proof of a conversation has been of two different kinds, namely, a recording thereof and testimony by witnesses who overheard it, it has been argued that both the recording and the testimony were the best evidence; however, the courts have not relegated either to a secondary position, but have held that both types of evidence are equally competent primary evidence, and that one is not to be excluded because of the existence of the other.

Accord Phillips v. State, 374 So.2d 824 (Miss.1979), overruled on other grounds.

The admission into evidence of the tape-recorded conversations did not render agent Spillers’ testimony concerning these conversations inadmissible.

III. Did the trial court err in admitting the tape-recorded telephone conversations?

Appellant contends the trial court erred in admitting the tape-recorded conversations because the caller never identified himself by name. Before a sound recording is admissible in evidence, a proper foundation showing the following must be made:

(1) [A] showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. .. .

See 29 Am.Jur.2d, Evidence § 436 (1967).

In Lindsey v. State, 279 So.2d 913 (Miss.1973), and Lee v. State, 242 Miss. 97, 134 So.2d 145 (1961), this Court recognized that testimony of a person having heard a voice is competent and legitimate evidence to establish identity in both civil and criminal cases. The weight to be accorded to such an identification is a question for the jury. Pickett v. State, 164 Miss. 142, 144 So. 552 (1932).

The cases relied upon by appellant are clearly distinguishable from the case sub judice. In Vaughn v. State, 130 Ala. 18, 30 So. 669 (1901), and Dentman v. State, 267 Ala. 123, 99 So.2d 50 (1957), the only evidence identifying the caller was the fact that the caller revealed his name. In Wiggins v. State, 43 Ala.App. 382, 191 So.2d 30 (1966), the witness asserted, although he had known the defendant for about fifteen years and the voice of the caller sounded like the defendant’s voice, he could not swear to the fact that the caller was the defendant. Yancey v. Ruffin, 281 Ala. 633, 206 So.2d 878 (1968), involved a witness’ phone call to a corporation; however, the witness could not identify the party he communicated with.

In the case at bar, agent Spillers identified the voice on the tape as that of appellant. Although he had not heard appellant’s voice prior to his two conversations with appellant on April 5, he based his identification on subsequent conversations with appellant as well as the fact that Spillers met the appellant following the caller’s directions shortly after the second conversation. The identification of a voice can be made either before or after the conversation at issue. See Hurst v. State, 240 So.2d 273 (Miss.1970), and Pyle and Mockbee, Authentication and Identification, 49 Miss.L.J. 151, 172 (1977).

In the present case, officer Spillers identified appellant as being the author of the phone calls after conversing with appellant on numerous occasions subsequent to the recorded conversations. Moreover, appellant’s identification was corroborated by the fact that agent Spillers met with him following the second conversation in which the caller stated:

Yeah, Gibson’s store, it’s on the right. When you see Gibson’s Store you gonna cross a bridge, you gonna cross a big bridge. Right after you cross the bridge you gonna come into a light, the first light. Okay see Gibson got a light in front of it, but you just pass on by Gibson’s and cross the bridge, after you cross the bridge you gonna up there and see the light, that’s 69. Get in your right hand lane, you know, turn off, and you gonna be on Highway 69. Just take a right, and just come straight on out. Don’t turn off no where until you get up to where it use to be (inaudible) Fork Lift place. When you see Clark’s Fork Lift place, turn to your left, just come straight on down, and I’ll be standing out there, you’ll see me somewhere. I’ll be on the road, (inaudible) (emphasis added)

Based on the foregoing, we believe appellant was sufficiently identified so as to render the recorded conversations admissible against him.

Finding no error in the conviction and sentence of appellant, this case should be and is hereby affirmed.

AFFIRMED.

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


author: BOWLING, Justice,

text:
    James Jerome GREEN v. STATE of Mississippi.
    No. 53440.
    Supreme Court of Mississippi.
    April 14, 1982.
    Eddie H. Tucker, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County for the crime of aggravated assault and received a sentence of twenty years with the Mississippi Department of Corrections. Appellant assigns three alleged errors, namely:

I. THE COURT ERRED IN ALLOWING THE DISTRICT ATTORNEY TO ASK QUESTIONS CONCERNING THE WHEREABOUTS OF OTHER WITNESSES THE APPELLANT COULD HAVE PRODUCED AT THE TRIAL OF HIS CASE.
II. THE COURT ERRED IN ALLOWING SERGEANT WILLIAMS OF THE JACKSON POLICE DEPARTMENT TO TESTIFY CONCERNING THE RECORDS OF THE CITY JAIL AS THEY RELATED TO THE WHEREABOUTS OF JAMES JEROME GREEN BETWEEN THE DATES OF OCTOBER 9th AND OCTOBER 30th, 1980.
III. THE COURT ERRED IN ALLOWING DETECTIVE C. M. CRISCO TO TESTIFY AS TO WHAT THE APPELLANT SAID AS TO HIS WHEREABOUTS ON NOVEMBER 13, 1980, AND THE INTRODUCTION OF A WAIVER WHICH WAS NOT SIGNED BY THE APPELLANT.

During the late night hours of November 13,1980, a Korean female, wife of an American citizen, was attacked and badly beaten on Maple Street in Jackson. Police found her in a bad physical condition with a number of injuries, including a fractured sinus cavity. There were shoe marks on her face. The lady was taken to the University Medical Center Emergency Room and admitted to the hospital. Upon being interviewed, she could not speak English but managed to give investigating officers a description of her assailant. Appellant was arrested on December 6, 1980, and charged with the crime.

At appellant’s trial the Korean native testified through an interpreter. She was 27 years of age; she had finished her work at about 10:40 p. m. and was going to pick up her daughter near Maple and Mill Streets. She was passing by the side door of a club when a man called to her. She was scared and tried to walk ahead, but the man caught up with her and the assault ensued. She testified that she saw the face of her assaulter three different times because there was a street light nearby and she positively identified appellant was the man who committed the assault. She testified that she was shown about forty to fifty pictures by the investigating officers and she picked appellant out of these pictures. She also picked him out of a police department line-up.

Appellant’s defense was an alibi. He introduced a witness who identified herself as appellant’s girlfriend. She testified that on the night of the assault the appellant was at her house from about 8 p. m. until 3 a. m. She further testified that appellant was at her house every night during that period of time for just about a .whole year prior to the assault. She and the appellant, according to her, never left the house on a Wednesday night [the night of the assault].

The girlfriend’s mother testified that she lived in the same house with her daughter. Her testimony corroborated that of the daughter that appellant was at her house the night of the assault from 8 or 8:30 p. m. until 3 a. m. She was sure that it was 3 a. m. as she had her clock-radio set to take medicine at that time; that appellant had to come through her room to get outside. She testified that appellant was at her house visiting her daughter during the same period of time between the dates of October 9 and October 30, 1980.

On rebuttal, the state introduced one of the investigating police detectives who testified the appellant stated to him that he could not have been involved in the assault because at that time he was “hanging out with his buddies.” The state introduced a police sergeant who was a shift commander of the Jackson City Jail and thereby supervised the records. He testified that between the dates of October 9, 1980, and October 30,1980, it would have been impossible for appellant to have been at their home or anyone else’s home.

I. THE COURT ERRED IN ALLOWING THE DISTRICT ATTORNEY TO ASK QUESTIONS CONCERNING THE WHEREABOUTS OF OTHER WITNESSES THE APPELLANT COULD HAVE PRODUCED AT THE TRIAL OF HIS CASE.

Appellant’s girlfriend testified that her brother and sister were in the house with her mother and her on the night in question and that they saw appellant there during the period of time testified to by her. The girlfriend was asked if her brother and sister were at the courthouse and the girlfriend answered they were not. There was no objection by appellant’s attorney to this question when it was first asked. Later on in the girlfriend’s testimony it was repeated and an objection was then made but overruled. Appellant contends this was reversible error.

This Court discussed the question of the prosecuting attorney commenting on why a witness was not brought into court as a defense witness in the case of Brown v. State, 200 Miss. 881, 27 So.2d 838 (1946), and stated the following:

We conclude that while the person of a witness may be accessible to a party, and his physical presence to testify may be procured by process, that is not the whole question; it is also, whether or not the testimony of the witness is equally available to such party. It is one thing for the person of a witness to be available, and his presence at court obtainable, but it is entirely another thing that what he knows can be equally availed of by the other party. We do not think that the testimony of this brother was equally available to the state as to his sister, codefendant with appellant, her husband, in this criminal prosecution.
The Supreme Court of Missouri, discussing this subject, said: “Now the term ‘available’ in the connection in which we are using it does not mean merely available or accessible for the service of a subpoena, since any witness who may be found may be subpoenaed at the instance of either party to any cause. Quite to the contrary the ‘availability’ of a witness to one or the other of the parties to an action depends either upon such party’s superior means of knowledge of the existence and identity of the witness, or else upon the relationship of the witness to the party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation and make it natural that he would be expected to testify in favor of the one party and against the other. In other words, a witness may properly be said to have been peculiarly ‘available’ to one party to an action, so that upon that party’s failure to have produced him in court an inference arises that his testimony would have been unfavorable, when such party had so superior an opportunity for knowledge of the witness, or there was such a community of personal interest between the party and the witness, as in ordinary experience would have made it reasonably probable that the witness would have been called to testify for such party except for the fact that it was known or feared that his testimony would be damaging rather than favorable.” Huskey v. Metropolitan Life Ins. Co., Mo.App., 94 S.W.2d 1075, 1078. In that case, the Court also said that failure of a party to produce such a witness not equally accessible to both parties because of above reasoning “not only gives rise to a legitimate inference that its production would have resulted unfavorably to him, but also rightfully entitled counsel for the opposing party, in the course of his argument to the jury, to comment upon his adversary’s failure to have produced such evidence.” In this case, the witness about whom the controversy raged, was a fellow-workman of the deceased policyholder in appellee company. See also Vol. 23 C.J.S. Criminal Law § 1099, p. 566, to the same effect.
We, therefore, overrule the part of the holding in the case of Albert Brown v. State, supra, which is contrary to our conclusion here. The judgment of the Circuit Court of Lauderdale County is affirmed.

It is readily apparent that the brother and sister of the alibi girlfriend witness were not equally available to the state as to appellant and under the guidelines set out in Brown, supra, the question asked by the prosecuting attorney is not reversible error.

II. THE COURT ERRED IN ALLOWING SERGEANT WILLIAMS OF THE JACKSON POLICE DEPARTMENT TO TESTIFY CONCERNING THE RECORDS OF THE CITY JAIL AS THEY RELATED TO THE WHEREABOUTS OF JAMES JEROME GREEN BETWEEN THE DATES OF OCTOBER 9 AND 30, 1980.

Appellant alleges that it was reversible error to indicate from the police jail records that appellant could not have been anywhere else between October 9,1980, and October 30, 1980. As seen above both girlfriend and girlfriend’s mother, particularly the mother, testified that appellant was at their house continuously between the dates stated above. In our opinion the court correctly permitted the testimony of the officer to impeach the positive testimony of the girlfriend and her mother. Appellant contends that this was introducing evidence of another crime allegedly committed by appellant. It is the general rule that in a criminal trial the state cannot introduce evidence of crimes committed by the accused other than that charged in the indictment under which he is then being tried. There are, however, several exceptions to the general rule.

In Brooks v. State, 242 So.2d 865 (Miss.1971), we stated:

The general rule is that in a criminal prosecution evidence which shows or tends to show that accused is guilty of the commission of other offenses at other times is not admissible, unless the other offenses are reasonably connected with that for which he is on trial. There is a substantial number of these exceptions. Evidence of other crimes is admissible to prove identity of the defendant, scienter or guilty of criminal knowledge, criminal intent or purpose, motive, a plan or system of criminal action where a continuing offense is charged or where other crimes form a part of the res gestae. Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962); 29 Am.Jur.2d Evidence §§ 320, 321 (1967). The “acid test is its logical relevancy to the particular excepted purpose or purposes” for which the evidence of prior offenses is sought to be introduced, “and the considerations justifying the reception of evidence of other similar crimes has been held by some courts to be peculiarly applicable in prosecutions for sexual offenses.” Id. § 321.

The testimony of the custodian of the jail records that the appellant could have been at no one’s home during the dates set out merely shows that appellant was “in jail.” Even though it could be inferred that he probably could have been charged with a crime, we are of the opinion that under the facts of this case, the evidence constituted an exception to the general rule of evidence of other crimes. Appellant was the one who presented the alibi defense by his girlfriend and her mother. The witnesses were positive that appellant was at their house between the dates above set out. In our opinion it was proper for the state to rebut this positive alibi evidence through the process of unrefuted jail records. Furthermore, even though we would hold that this was a question so close as to render the testimony erroneous, in our opinion the admitting of this testimony is not reversible error.

III. THE COURT ERRED IN ALLOWING DETECTIVE C. M. CRISCO TO TESTIFY AS TO WHAT THE APPELLANT SAID AS TO HIS WHEREABOUTS ON NOVEMBER 13, 1980, AND THE INTRODUCTION OF A WAIVER, WHICH WAS NOT SIGNED BY THE APPELLANT.

After appellant’s arrest it is not denied that he was given all his constitutional warnings and all information regarding his constitutional rights. After this was done, he stated to one of the investigating officers that on the date in question he was “hanging out with his buddies.” The allowance of this evidence was not error. In Davis v. State, 320 So.2d 789 (Miss.1975), we stated as follows:

The appellant cites no authority, nor are we aware of any which requires that a waiver of an accused’s constitutional privileges against self-incrimination, right to counsel, etc. must be in writing and signed by the accused before inculpa-tory statements made by him and otherwise freely and voluntarily given are admissible in evidence. Such a statement is admissible provided the accused has been afforded the protection of the Miranda warning and he thereafter knowingly and intelligently waives his rights and freely and voluntarily makes the statement.

Assignment of Error No. Ill is without merit.

AFFIRMED.

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


author: BEATTY, Justice. FAULKNER, Justice

text:
    Lynneice TAYLOR, et al. v. LEEDY AND COMPANY, INC., et al.
    80-454.
    Supreme Court of Alabama.
    March 5, 1982.
    Rehearing Denied April 9, 1982.
    Grover McLeod, Birmingham, for appellants.
    Eugene De Martenson of Huie, Fernam-bucq, Stewart & Smith, Birmingham, for appellees.
   BEATTY, Justice.

This appeal arises out of an action for personal injury brought by Lynneice Taylor, lessee, against Leedy and Company, Inc. (hereinafter Leedy), rental agent for the landlord. On November 1, 1979, Taylor signed a lease for an apartment at Center Place North in Birmingham. The landlord furnished a stove in the apartment. The stove was mounted on the sides of two kitchen cabinets, but was not supported by legs or other bracings. The stove collapsed on June 7, 1980, while Taylor was cooking. The stove’s collapse caused a boiling liquid to spill on Taylor’s son Paris. Paris sustained permanent injuries resulting in substantial hospitalization and medical expenses. After the accident Lynneice Taylor learned that other stoves in the complex had collapsed prior to the accident in her apartment.

In June 1980 Lynneice Taylor filed an action against Leedy alleging negligent and wanton conduct of the company by either failing to disclose the defect or failing to make repairs to the stove. Leedy moved for a summary judgment pursuant to Rule 56, Alabama Rules of Civil Procedure, arguing that the exculpatory clause in the lease absolved it from liability for negligence and that it was entitled to judgment as a matter of law. The trial court granted the motion and Taylor appeals. We reverse and remand.

The long-established policy of this state subjects the landlord to liability for latent defects of which he knows at the time the lease is made and which he conceals from the tenant. Stallings v. Angelica Uniform Co., Ala., 388 So.2d 942 (1980); Jefferson Standard Life Ins. Co. v. Watson, 242 Ala. 181, 5 So.2d 639 (1942); Scoggins v. Atlantic & Gulf Portland Cement Co., 179 Ala. 213, 60 So. 175 (1912). The defendant in the present case is relying upon the exculpatory clause in an obvious attempt to avoid that settled policy. Exculpatory clauses, however, exonerate the landlord from liability for his own future negligence, Matthews v. Mountain Lodge Apartments, Inc., Ala., 388 So.2d 935, 937 (1980), not for concealment of a known latent defect which subsequently causes injury. Although past decisions have alluded to this distinction, we wish to make it clear now that a latent defect is an exception to the coverage of an exculpatory clause. Concealment at the time the lease is entered constitutes a (willful) act which is different from a mere negligent act. Deen v. Holderfield, 275 Ala. 360, 155 So.2d 314 (1963). This exception is a separate consideration from the active/passive concept of negligence which is used to circumvent the legal effect of an exculpatory clause when the negligent act occurs after the commencement of the lease. See, e.g., Matthews v. Mountain Lodge Apartments, Inc., supra.

The injury in the present case occurred from the collapse of a stove furnished by the landlord. There is evidence in the record that other stoves in the complex had collapsed prior to this incident, giving the landlord here notice of this dangerous condition. The fact that the stove was not supported by legs or other bracings at the time the lease was created could be considered a latent defect. The landlord, nonetheless, did not disclose this condition to the tenant. The trial court erred in granting the defendant’s motion for summary judgment when the defendant (landlord) did not negate the existence of any material fact upon which the factfinder could conclude in favor of the plaintiff (tenant). Rule 56, Alabama Rules of Civil Procedure. That is, there is evidence, as pointed out above, that the defendant committed a “willful” act by concealing the latent defect from the tenant. The exculpatory clause does not release the landlord from liability for such an act; thus, he was not entitled to judgment as a matter of law. The summary judgment is, therefore, reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, AL-MON, SHORES and ADAMS, JJ., concur.

FAULKNER, JONES and EMBRY, JJ., concur specially.

FAULKNER, Justice

(concurring specialty)-

I concur to reverse and remand, but I would do. so by holding the exculpatory clause invalid.

In Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935 (Ala.1980), this Court addressed the question of the validity of exculpatory clauses to absolve a landlord of liability for negligent injury to property. We upheld the validity of the clause in property injury cases, but specifically withheld the question of the validity of exculpatory clauses to bar recovery for personal injuries. Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935, n. 1, Ala. I would hold that the provision is invalid and unenforceable.

The general rule in Alabama is that a person may not contract away the consequences of his or her own negligence. Alabama Great Southern Railroad Co. v. Sumter Plywood, 359 So.2d 1140 (Ala.1978); Housing Authority of Birmingham District v. Morris, 244 Ala. 557, 43 So.2d 527 (1943). This Court has recognized an exception for certain exculpatory clauses. See Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935 (Ala.1980); Baker v. Wheeler, Lacey & Brown, 272 Ala. 101, 128 So.2d 721 (1961). The rationale for recognizing such an exception is that leases are private contracts in which the public has no interest and enforcement of which will result in no injury to the public. Alabama Great Southern Railroad Co. v. Sumter Plywood, 359 So.2d at 1145. Nevertheless, such an argument has little strength when applied to the exculpation of liability for personal injuries. See, e.g., Henrioulle v. Marin Ventures, Inc., 20 Cal.2d 512, 143 Cal.Rptr. 247, 573 P.2d 465 (1978); Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377 (1941); Kuzmiak v. Brookchester, Inc., 33 N.J.Super. 575, 111 A.2d 425 (1955); McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971). The rental industry provides a basic necessity of life, shelter, to thousands of inhabitants of this State. Henrioulle v. Marin Ventures, Inc., 20 Cal.2d 512, 143 Cal.Rptr. 247, 573 P.2d 465; McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093. A lease is no longer an isolated contract between one landlord and one tenant. The size of the rental industry is so great that construction of an exculpatory clause has an impact on thousands of citizens. Id. Furthermore, the public has an interest in the quality of housing offered for rent to all members of the public. Enforcement of exculpatory clauses in personal injury cases results in great harm to the public, and thus these clauses do not fall within the exception to the rule that a party may not contract against his or- her own negligence.

Society also has a stronger interest in preventing personal injuries than property injuries, as expressed by the legislature in various enactments. For example, § 7-2-719(3), Code 1975, provides that a clause limiting consequential damages for personal injury in the sale of consumer goods is prima facie unconscionable. Alabama’s version of the Uniform Commercial Code also differs from the official version in one significant respect. Sections 7-2-718 and 7-2-719(4) state that nothing in the provisions of the Code shall be construed to limit the seller’s liability for personal injury. While the legislature has not specifically addressed the issue of exculpatory clauses, other code sections reinforce the view that although the landlord may limit liability for property damages, the landlord may not limit liability for personal injuries.

“Agreements exempting persons from liability for negligence induces [sic] a want of care, for the highest incentives to the exercise of due care rest in consciousness that a failure in this respect will fix liability to make full compensation for any injury resulting from the cause.” Housing Authority of Birmingham District v. Morris, 244 Ala. 557, 14 So.2d 527 (1943). In other words, the best way to promote the exercise of due care is to hold a landlord liable for his or her own negligence. Tenants are not the only people who are injured by a landlord’s negligent infliction of physical injury. Any member of the public may enter the premises and be injured as a result of a landlord’s failure to exercise due care. The public has an interest in protecting itself from such injury. Exculpatory clauses discourage landlords from meeting the duty imposed on them by law for the protection of society.

Exculpatory clauses are inconsistent with the principles of tort law. See McCutcheon v. United Homes Corp., 79 Wash.2d at 450, 486 P.2d at 1097. Tort law imposes liability for unsafe products, unsafe food and unsafe premises. “It makes little sense for us to insist, on the one hand, that workmen have a safe place in which to work, [safe products, and safe food], but, on the other hand, to deny [them] a reasonably safe place in which to live.” Id.

Exculpatory clauses for personal injuries are not only violative of public policy, but the clauses are prima facie unconscionable. See Code 1975, §§ 7-2-718, 7-2-719; Weaver v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144 (1971). Section 7-2-302 of the Alabama Code permits this Court to refuse to enforce a contract which is found to be unconscionable. Although the section is specifically applicable only to sales contracts, the principles are analogous to contracts for the rental of property. An unconscionable contract is one “[s]uch as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” West Point-Pepperell, Inc. v. Bradshaw, 377 F.Supp. 154 (M.D.Ala.1974) (quoting Hume v. United States, 132 U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393 (1889)). Courts have cited several factors as bearing on the issue of whether a contract is enforceable. Those factors include the bargaining power of the parties, the availability of meaningful choices and whether the provisions unreasonably favor one party. Id., Weaver v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144 (1971). Clearly, landlords have greater bargaining power than tenants in residential leases. A tenant must live somewhere. The tenant has no meaningful choices. He can accept this landlord or go to another landlord who charges the same rent and asks the tenant to sign the same standard form lease. In other words, the modern standard form lease is in essence an adhesion contract. A survey of residential leases in Alabama would show that almost all leases contain these exculpatory clauses. A rea: onable person with equal bargaining power would not accept a term whereby they or their children may be injured or killed, and they would have no recourse against the guilty party. Justice Frankfurter of the United States Supreme Court spoke on the question of inequality of bargaining power in his dissenting opinion in United States v. Bethlehem Steel Corp., 315 U.S. 289, 62 S.Ct. 581, 86 L.Ed. 855 (1942):

“It is said that familiar principles would be outraged if Bethlehem were denied recovery on these contracts. But is there any principle which is more familiar or more firmly embedded in the history of Anglo-American law than the basic doctrine that the courts will not permit themselves to be used as instruments of inequity and injustice? Does any principle in our law have more universal application than the doctrine that courts will not enforce transactions in which the relative positions of the parties are such that one has unconscionably taken advantage of the necessities of the other?
“These principles are not foreign to the law of contracts. Fraud and physical duress are not the only grounds upon which courts refuse to enforce contracts. The law is not so primitive that it sanctions every injustice except brute force and downright fraud. More specifically, the courts generally refuse to lend themselves to the enforcement of a ‘bargain’ in which one party has unjustly taken advantage of the economic necessities of the other.”

This Court should not be an instrument of inequity and injustice. An exculpatory clause of this type contravenes the long established common law rules of tort liability. The question is whether this Court will sanction the statewide immunization of landlords for personal injuries, encourage landlords to neglect the duties imposed on them by law for the protection of tenants, and expose tenants to the risk of injury through a landlord’s carelessness. This Court should not sanction such a rule. Thus, I would hold that exculpatory clauses in residential leases limiting the landlord’s, or his agent’s, liability for personal injuries are unenforceable.

JONES and EMBRY, JJ., concur.


author: ADAMS, Justice. TORBERT, Chief Justice

text:
    WEST ALABAMA REMODELING, INC. v. Glenn IRELAND, II, etc., et al.
    80-625.
    Supreme Court of Alabama.
    April 2, 1982.

      William J. Donald, III, of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Earl E. Cloud of Cloud & Cloud, Huntsville, for appellee Miller Elec. Co. of Huntsville, Inc.
    James L. Martin, Sp. Asst. Atty. Gen., for appellee The State Licensing Bd. for General Contractors.
    G. R. Trawick, Asst. Atty. Gen., for ap-pellee Dept, of Mental Health.
   ADAMS, Justice.

West Alabama Remodeling, Inc., brought an action against the various defendants herein, seeking declaratory and injunctive relief and damages. The trial court granted summary judgment for all defendants. The record on appeal indicates that there are material questions of fact and defendants are not entitled to judgment as a matter of law; therefore, we reverse and remand.

Plaintiff West Alabama Remodeling was second lowest bidder on a project of renovation of the North Alabama Regional Hospital in Decatur. The lowest bidder, Miller Electric Company of Huntsville, Inc., (Miller) has a specialty construction license, one of the classifications of licenses published by the Alabama State Licensing Board for General Contractors (the Licensing Board). After bids were opened on February 27, 1980, West Alabama Remodeling notified the Mental Health and Licensing Boards of its opinion that Miller was not qualified to perform the contract. On March 5, 1980, the Licensing Board held a hearing and determined that Miller was properly licensed to bid on this job. On March 27, 1980, the Mental Health Board awarded the contract to Miller.

In June 1980, West Alabama Remodeling sued Glenn Ireland as Commissioner of Mental Health, Fob James as Receiver of the Mental Health System, L. Ray Clark as purchasing agent of the Department of Mental Health, the Mental Health Board, and the Department of Mental Health (collectively referred to as the Mental Health defendants); plaintiff also named Miller and the Licensing Board as defendants. The essence of the complaint is a claim that Miller is not properly licensed to bid on the project as a general contractor, and that West Alabama Remodeling is entitled to relief because it should have been awarded the contract.

The Licensing Board’s determination that Miller was properly licensed for this job hinged upon its policy that a project will be classified by the type of work which constitutes 51% or more of the cost of the project (the 51%-of-the-job rule). The mechanical, sheet metal, electrical, and heating and air conditioning work constitutes 60-80% of this renovation project. Miller’s license reads: “Specialty: (Mechanical, Electrical, Sheet Metal, Heating and Air Conditioning) and work incidental thereto.” Thus, the Licensing Board determined that Miller was properly licensed for this job because it is qualified to perform work which constitutes more than 51% of the project.

The dispute in this case centers on the 51%-of-the-job rule — whether it should be applied to Miller, who held a license under Specialty Construction. This issue arises because to bid on and perform the contract, Miller had to be properly licensed under Code 1975, § 34-8-1, et seq. West Alabama Remodeling contends that this project is a building construction project and, therefore, only a general contractor with a building construction classification should be awarded the prime contract. See Code 1975, §§ 34-8-1 and -9. The Mental Health Board referred West Alabama Remodeling’s challenge to the Licensing Board, which advised that Miller was properly licensed to perform this job, basing its decision on the 51%-of-the-job rule.

West Alabama Remodeling complains that the 51%-of-the-job rule has never been published so as to give notice to contractors of this policy, and further, that the policy, at least as applied here, does not promote the licensing law’s purpose of safeguarding life, health and property. Id., § 34-8-20. The 51%-of-the-job rule, therefore, says plaintiff, is beyond the Licensing Board’s power under Code 1975, § 34^-8-22, since it is in conflict with the general purpose of the statutes dealing with contractors. One of the duties of a prime contractor is to superintend other contractors, and West Alabama Remodeling argues that there is no reason to suppose specialty contractors will be qualified for such supervision, and such qualification is a factor considered by the Licensing Board in granting a contractor’s license. In four of the five categories of contractors set out in the Licensing Board’s only publication, the contractor is allowed to perform work incidental to the major undertaking. This is not provided for in the specialty category. These arguments are supported by the affidavit of Henry T. Hagood, Executive Secretary for the Alabama Branch of the Associated General Contractors of America, Inc., who states that “The basic rationale for this thinking is that each of the contractors under [the] four general classifications are accustomed to coordinating multiple numbers of specialty contractors on projects.”

Miller counters that its license is that of a general contractor with a specialty classification and that it is qualified to superintend the work on this project for which it is not licensed. Indeed, West Alabama Remodeling acknowledges that Miller is a capable contractor and there is even some indication that Miller has by this time satisfactorily completed a substantial portion of the project. The dispute, therefore, is more generally whether the 51%-of-the-job rule is a proper method of classification, at least with respect to specialty contractors.

The Licensing Board argues that it has long applied its 51%-of-the-job rule and that this is a matter of common knowledge; however, this claim is made in conclusory terms and there is no evidence in the record to back it up. West Alabama Remodeling contends that because the rule is not published, it cannot support a summary judgment. We do not find it necessary to inquire at this point as to proper publication of this rule, because there is a question as to whether the rule is substantively appropriate as applied to specialty contractors and because the future applicability of the rule will be governed by the new Alabama Administrative Procedure Act, Code 1975, §§ 41-22-1 through -27, the major provisions of which are not yet in effect.

Because there is a genuine issue of material fact as to whether a specialty contractor should be awarded a contract on a large project simply because its specialties cover more than half of the work cost, we believe summary judgment was inappropriate. We can see how the rule would properly apply among the other four classifications — for instance, a utility contractor supervising a component of a job that would normally be done by a building construction contractor — and yet not properly apply to specialty contractors who might have no supervision experience. On remand, defendants will have the opportunity to show that the award of the renovation contract is consistent with the purpose and policy of the contractors’ statute.

Summary judgment in favor of defendants is due to be reversed and this cause remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

FAULKNER, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

The 51%-of-the-job rule is not really a rule or regulation at all but simply a longstanding policy. Therefore, the issue is not necessarily whether the 51%-of-the-job rule is valid, but whether Miller meets the qualifications under the contractor’s licensing statute so that the award of the contract to Miller was valid. Because the question of whether Miller meets these qualifications is a genuine issue of material fact, the granting of Miller’s motion for summary judgment was inappropriate. See Fountain v. Phillips, 404 So.2d 614 (Ala.1981).

      . The only publication of the Licensing Board is its “Roster of Licensed Contractors”; see Code 1975, § 34-8-26. It includes the following table:
      CLASSIFICATIONS OF LICENSES
      BUILDING CONSTRUCTION: Shall include the construction of building structures, including modifications thereof, or additions and repairs thereto, intended for use for shelter, protection, comfort or convenience. Building construction shall include the excavation and foundations for building construction and work incidental thereto.
      HIGHWAYS AND STREETS: Shall include the construction of roads, streets, alleys, sidewalks, curb and gutter guard rails, fences, parkways, parking areas, runways, bridges, grading, draining, and all other types incidental thereto.
      MUNICIPAL AND UTILITY: Shall include clearing, grubbing, grading, paving, curbs, gutters, walks, driveways, swimming pools, sewer projects, water projects, gas projects, electric project [sic], telephone projects and work incidental thereto.
      HEAVY AND RAILROAD CONSTRUCTION: Shall include the construction of railroads, bridges, foundations, pile driving, piers, abutments, retaining walls, viaducts, tunnels, subways, drainage projects, aqueducts, irrigation projects, flood control projects, water power development, hydro-electric development, transmission lines, pipe lines, locks, dams, dikes, levees, revetments, channels, breakwaters, docks, harbors, industrial projects, excavation, clearing, grubbing, and any other work incidental to the above types.
      SPECIALTY CONSTRUCTION: Is defined as any work in connection with construction requiring special skill and the use of specially skilled trades or crafts or any particular parts of the work described iri either of the above four classifications or any typs [sic] desired, such as:
      Mechanical Roofing and Siding
      Electrical Floor Covering
      Sheet Metal Heating and Air-Conditioning
      Masonry Bridges
      Painting Other


author: BEATTY, Justice.

text:
    Nell BLEIDT v. Carl KANTOR and Joseph G. Vath, Bishop of Birmingham in Alabama.
    80-590.
    Supreme Court of Alabama.
    April 9, 1982.

      Grover S. McLeod, Birmingham, for appellant.
    J. Clewis Trucks of Trucks, Parsons & Guyton, Fairfield, and W. J. Sullivan, Jr. of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.
   BEATTY, Justice.

This appeal from the Circuit Court of Jefferson County concerns a will contest initiated by Nell Bleidt, contestant of the will of Pete James Finnen, deceased. The party defendants are Carl Kantor (the executor) and Joseph G. Yath, Bishop of Birmingham in Alabama, a corporation sole, proponents of the will. The contest is based upon the allegations of undue influence in the execution of the will and forgery of the will. The jury returned a verdict in favor of proponents. The trial court awarded attorneys’ fees to proponents and denied contestant’s motion for a new trial.

Contestant raises two issues on appeal:

I. Whether the trial court erred in refusing to give certain jury instructions submitted by contestant on the issues of undue influence and forgery and in giving an instruction requested by proponents on the issue of undue influence.

II. Whether the trial court erred in awarding attorneys’ fees to proponents.

I.

The issue regarding the jury instructions was not properly preserved for our review. At the conclusion of the trial court’s instruction to the jury, contestant offered general objections to the omission of each of her requested charges and to the giving of one of proponents’ charges by reading those charges verbatim into the record.

Rule 51, ARCP, states:

No party may assign as error the giving or failing to give a written instruction ... unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.... [Emphasis added.]

The objections made by contestant in this case were not sufficiently specific (even if they can be viewed as objections). Contestant stated the matter to which she objected by reciting her charges; however, she offered no grounds for the objections. Rule 51 expressly requires that a party state the grounds for his objection and the failure to do so is fatal to appellate review. Burnett v. Martin, Ala., 405 So.2d 23 (1981).

We held in Gardner v. Dorsey, Ala., 331 So.2d 634 (1976), that the grounds requirement is excused only in the limited circumstance where the party makes a specific objection and the charge involves a misstatement of substantive law. Contestant claims that her objection to the giving of one of proponents’ charges falls within the exception to Rule 51 as the charge involved a misstatement on the issue of undue influence. We disagree.

The charge in question reads as follows:

I charge you that the mere fact that Carl Kantor was a friend of Mr. Finnen and did chores for him and assisted him as a good friend would do does not create a confidential relationship between Mr. Finnen and Mr. Kantor nor does it constitute a dominance by Mr. Kantor over Mr. Finnen. If you are reasonably satisfied from the evidence that Mr. Kantor was merely a good friend of Mr. Finnen but did not stand in a confidential relationship to him as to dominate the relationship, then you cannot find in favor of Mrs. Bleidt, the contestant of the will, on the issue of undue influence.

The general rule is that a presumption of undue influence arises when a person stands in a confidential relation to the testator, dominates the relationship and procures the execution of the will by undue activity. Nottage v. Jones, Ala., 388 So.2d 923 (1980). Contestant argues that the charge above states, in effect, that being a friend and doing chores for Finnen were unimportant in establishing a confidential relationship. We find, however, that the charge in question, in accord with the entire charge, merely emphasizes that friendship alone does not indicate undue influence. Not all influence with respect to the execution of a will is undue. Pruitt v. Pruitt, Ala., 343 So.2d 495 (1976). We hold, therefore, that the trial court did not misstate the law on undue influence, and on that issue the trial court’s order is affirmed.

II..

The trial court awarded $10,000.00 in attorneys’ fees to proponents pursuant to Code of 1975, § 43-1-76, which provides, in part, that the costs of any will contest “must be paid by the party contesting if he fails.” In so doing the record discloses that the trial court gave a literal interpretation to the language of the statute. The contestant agreed below and again before this Court that Clark v. Clark, 287 Ala. 42, 247 So.2d 361 (1971), controls that issue. That case involved an allowance of attorneys’ fees under Title 61, § 59, Alabama Code of 1940, the predecessor of Code of 1975, § 43-1-76. There this Court was dealing with a prior will contest which had been successful but which, upon review, was found to be based upon insufficient evidence. Clark v. dark, 280 Ala. 644, 650, 197 So.2d 447 (1967). In the later Clark case dealing with the award of attorneys’ fees against the contestant as costs, this Court referred to the earlier Clark suit as “altogether without merit,” or frivolous. Therefore, this Court held the trial court had erred in decreeing that the executor’s attorneys be paid from the residuary estate “and in not taxing such fee against the contestants as costs in the will contest suit.” Clark, supra, 287 Ala. 42, 48, 247 So.2d 361. In other words, this Court construed § 59 (now § 43-1-76) as authorizing attorneys’ fees against the contestant who fails only when the contest is without merit. That is, if there is some credible evidence offered by the contestant in support of the theory of the contest, the contestant is not to be charged with paying the attorneys’ fees of the proponent.

An examination of this record convinces us that this contest was not “altogether without merit.” To the contrary, the contestant adduced credible evidence of undue influence and forgery. The proponents of the will produced evidence tending to show an absence of undue influence or forgery. The trial court properly allowed the jury to resolve the conflict created by the evidence of both sides, and the jury found for the proponents. But the mere fact that the contestant lost could not under § 43-1-76 and Clark, 287 Ala. 42, 247 So.2d 361 (1971), be used to charge the contestant with the proponents’ attorneys’ fees as part of the costs.

Accordingly, that portion of the trial court’s order charging the contestant with the proponents’ attorneys’ fees as costs is reversed and the cause is remanded with directions to enter an order not inconsistent with this opinion. It is so ordered.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.