author: COFER, Justice, for the Court:

text:
    NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al. v. CLAIBORNE HARDWARE COMPANY et al.
    No. 51488.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Rehearings Denied March 4, 1981.

      Alix H. Sanders, Greenwood, William R. Richardson, Jr., Arthur M. Weisburd, James Robertson, Lloyd N. Cutler, Washington, D. C., Frank R. Parker, Julie Ann Epps, Royals, Taylor & Epps, A. Spencer Gilbert, III, Gilbert & Moore, Jackson, for appellants.
    Crane D. Kipp, Shell, Buford, Bufkin, Callicutt & Perry, Christopher J. Walker, Upshaw & Ladner, Dixon L. Pyles, Pyles & Tucker, Jackson, W. E. Gore, Jr., Jackson, for appellees.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   COFER, Justice, for the Court:

Beginning April 1, 1966, a boycott of retail merchants of Port Gibson and Claiborne County was in effect for some length of time. This suit, in the Chancery Court of the First Judicial District of Hinds County, resulted from the boycott. The suit, brought by Claiborne Hardware Company and twenty-three other complainants, retail merchants in Claiborne County, and filed October 31, 1969, named as defendants the National Association for the Advancement of Colored People (NAACP), Mississippi Action for Progress (MAP), a domestic nonprofit corporation and 146 individual defendants (individuals), (NAACP, and individuals, NAACP, et al.), these individual defendants largely making common cause with defendant NAACP in the suit. The bill of complaint charged defendants with conspiracy to injure and ruin the businesses of the several complainants by tortious involvement with complainants’ rights to pursue their lawful trade and business through defendants’ conspiracy, boycott, interference, and restraint of trade. In their suit complainants alleged and charged:

1.The complainants charge that beginning on or about April 1, 1966, and continuing daily thereafter each, every and all of the defendants, corporate, and individual defendants, hereinbefore set forth, combined and entered into an agreement and conspiracy, with a unity of design and purpose and a preconceived plan, the malicious and unlawful object of which was to ruin and cause injury to the hereinbefore named businesses of the complainants and others; that said defendants did not enter into said conspiracy and combination for the purpose of protecting or advancing any legitimate interests of their own; and that said act constituted an unlawful conspiracy.
2. The complainants charge that the means employed by the defendants, and each of them in carrying out and to effect the purpose of the illegal and unlawful combination, plan, scheme, and conspiracy, was and is likewise malicious, illegal and unlawful; that the defendants have since April 1, 1966, daily engaged in and committed malicious, illegal and unlawful acts of injurious falsehoods, deception, force, intimidation, threats, coercion and violence against the customers and prospective customers of the complainants.
3. The complainants charge that in pursuance of the aforesaid conspiracy to injure the businesses of complainants and others, that the defendants and each of them executed and are continuing to carry out said malicious, illegal and unlawful plan and scheme to the great damage of complainants; and that said conspiracy on the part of all and each of said defendants was induced in malice toward the complainants and was and is without justification or lawful purpose; and that its objects as aforesaid have been and are being accomplished by illegal means and in an unlawful manner.
4. The complainants charge that on or about April 1, 1966, and daily thereafter, the defendants and each of them entered into an unlawful combination among themselves and others who are unknown to complainant to illegally bring about a secondary boycott to the businesses of the complainants and others with the intent and purpose of causing loss to the complainants and others by coercing the customers and prospective customers, against their will, to withdraw and withhold their beneficial business intercourse from the complainants by the infliction of physical injury to said customers and prospective customers on their person and property; by the threat of physical injury; by intimidation so as to put said customers and prospective customers in fear of such injury; through the fear of incurring the displeasure persecution and vengeance of. said combination; and by threats to said customers that unless they withdrew or withheld their beneficial business intercourse from the complainants and others against whom the conspiracy, combination and concert of action is directed, that said combination would cause injury to said customers in their person, property and business. Complainants further charge that by the use of threats, intimidation, and coercion, the said defendants intended to overcome and did overcome the will of the customers and prospective customers of the complainants, and by such unlawful and illegal means, intended to and did compel said customers to refrain from trading with the complainants. Complainants further charge that said defendants committed acts and spoke words to said customers and prospective customers of complainants that caused them to fear for their lives and safety; and that they were in such apprehension of damage that said customers were and are so influenced thereby as to prevent them from freely trading with complainants, as said customers so desire to do; and that the complainants assert that they at no time material hereto had any dispute, disagreement or controversy with any of the defendants herein or the combination thereof. Complainants further charge that the said illegal secondary boycott was and is an unlawful invasion of their property rights; that complainants have been caused to suffer great harm and damage as a result thereof; and that complainants, because of said malicious attempt to irreparably injure them and each of them, without purpose, by said secondary boycott, are entitled to recover damages jointly and severally from said defendants.

(These allegations were used as complainants' basis for charging interference and restraint of trade on defendants’ part, also.)

After delay in the United States District Court and the Fifth Circuit Court of Appeals [Henry v. First National Bank of Clarksdale, 50 F.R.D. 251 (N.D.Miss.1970), 444 F.2d 1300 (5th Cir. 1971), cert. denied, 405 U.S. 1019, 92 S.Ct. 1284, 31 L.Ed.2d 483 (1972), rehearing denied, 406 U.S. 963, 92 S.Ct. 2057, 32 L.Ed.2d 351 (1972)], trial was begun on June 11, 1973, on the Bill of Complaint and Cross Bills of some of the defendants. After testimony was taken over a long period of time, the chancellor rendered opinion August 9,1976, which was followed by decree consistent therewith dated and filed on August 19, 1976.

The complainants had prayed for actual damages alleged to be in the amount of $3,542,466.04. The chancellor awarded aggregate money decree to them in the amount of $950,699 plus solicitor fees in the amount of $300,000, a total recovery of $1,250,699. Chancery jurisdiction was availed of for use of the attachment in chancery statute [Miss.Code Ann., § 11-31-1 (1972)] and for injunction. Injunction against use of guards at stores, persuading or otherwise procuring potential customers to withhold their patronage, and against individual activity by the defendants was ordered by the decree.

(Although the granting of injunction has been assigned as error, the error has not been argued, and NAACP, et al. say, at the conclusion of their brief “... the injunctive aspects of the case are now moot .... ”).

Appeal was taken therefrom to this Court. Defendants-appellants successfully invoked the aid of the federal court for relief against full compliance with our appeals supersedeas statute [Henry v. First National Bank of Clarksdale, 424 F.Supp. 633 (N.D.Miss.1976), aff’d 595 F.2d 291 (5th Cir. 1979)]. Appellants do not assign as error the chancellor’s failure to award relief on their cross bills, nor is there a cross appeal by the complainants as to amount of the decree nor as to the court’s dismissal of the cause as to certain of the defendants.

On appeal, twenty-eight errors are assigned, but appellants’ arguments are made as to the following propositions:

1. The appeals for a boycott to protest racial discrimination were lawful communications protected by the First Amendment.
A. The allegedly “secondary” character of the boycott is both irrelevant and unproven.
B. The chancellor’s conclusions regarding intimidation are unsupported by record and Constitutional limitations.
2.All of the three theories of liability adopted by the chancellor were erroneous.
A. Mississippi’s anti-boycott statute cannot support the finding of liability.
1. The statute purports to forbid activity protected by the First Amendment and is therefore unconstitutional on its face.
2. Retroactive application of the anti-boycott statute was erroneous under state law and deprived appellants of due process of law.
B. Mississippi’s trade restraint statutes do no apply to the Port Gibson boycott.
C. The common law of conspiracy to commit tortious interference with business does not support the finding of liability.
3. The chancellor erred in awarding damages without first separating out the amount of loss resulting from Constitutionally protected activity.
4. The award of damages was speculative and improper in many respects.
A. The chancellor erred in awarding damages for goodwill.
B. The chancellor erroneously depended upon indirect evidence of lost profits where more reliable evidence was available.
C. In obvious ways, the appellees’ theories for calculating lost profits were improper and yield only speculative results.
D. The chancellor erred in failing to correct for appellees’ mitigation of their losses.
E. The chancellor erred in awarding damages representing prejudgment interest on lost earnings.
5. The award of attorneys’ fees was error because the anti-boycott statute was inapplicable and for other reasons.
A. It was error to include in the award attorneys’ fees incurred in federal litigation.
B. The record contains no evidence and the chancellor made no findings to permit appellate review of the attorneys’ fee award.
6.The chancellor abused his discretion in denying appellants’ motion for a change of venue.

On liability, we affirm the Chancellor’s decision as to some defendants, and reverse it as to others, as hereinafter indicated. We reverse as to damages and remand the case to the lower court for trial on the issue of damages only.

(MAP has filed its own assignment of errors and separate brief, all of which will be noticed later in this opinion.)

Reaching early appellants’ Point VI, attacking the Chancery Court’s failure to grant appellants’ request for a change of venue to Claiborne County, we find no error in the retention of the case in the Chancery Court of the First Judicial District of Hinds County.

The suit might properly have been brought “in the Chancery Court of any county where the defendant, or any necessary party defendant, may reside or be found.” Mississippi Code Annotated, Section 11-5-1 (1972). The suit was for injunction and recovery of damages against multiple defendants largely resident of Claiborne County. However, at least three defendants, including NAACP and MAP “resided” in the First Judicial District of Hinds County.

Appellants, in support of this assignment of error have cited Gillard v. Great Southern Mortgage & Loan Corp., 354 So.2d 794 (Miss.1978), and Illinois Central Gulf RR v. Stedman, Admrx., 344 So.2d 468 (Miss. 1977). The Gillard case involved no resident of the county wherein the suit was brought. The Stedman case was brought in a county permissible for venue purposes by Section 11-5-1, but far from the county of the accident claiming the life of Mrs. Sted-man’s deceased. This Court did not hold it to be error not to grant a change of venue on that account, but pointed out that, on retrial, the reversal being on faulty instruction, the circuit court should again consider the motion for change of venue under the doctrine of forum non conveniens.

The granting of the motion was addressed to the sound discretion of the court, and, in order to assert error in refusing the change, it is necessary for the movant to show prejudice to him in the refusal, such prejudice not appearing here. Gillard, supra; Mississippi State Highway Comm. v. Rogers, 240 Miss. 529, 128 So.2d 353 (1961); Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961).

No reversible error was committed in the court’s denial of the requested change of venue.

Black people number more than three-fourths of the population of Claiborne County. With the momentous weight of civil rights progress augmented in great measure by federal civil rights laws and led by dedicated activists, by the time the boycott here involved had begun the blacks had obtained overpowering authority in the ballot box. In the elections which took place in 1967 they from their number elected the chancery clerk, and might easily have put members of their ranks in practically all of the county’s elective offices.

Late in 1965, a group of their numbers, whether spontaneously or by authority of some group is not clear, had put together certain complaints and areas of relief which concerned them. About the same time, the NAACP movement had taken hold in Claiborne County which movement resulted in the organization of a chapter whose power and desires were being expressed. The late 1965 points of relief and the exponents of them were silenced or otherwise replaced by a group which had the leadership of Charles Evers, Field Secretary for the NAACP. In two missives they delineated and articulated to the addressees thereof their immediate concerns.

The first of the communications, dated March 14,1966, was addressed to the mayor and board of aldermen (obviously of the City of Port Gibson), the Claiborne County Board of Supervisors, the Board of Education and Sheriff McKay (both obviously of Claiborne County). The needs therein expressed were prefaced by a frank consideration of what may be correctly regarded as an alternative or an option probably facing those who had the power to satisfy those needs:

We hope it will not be necessary to resort to the kind of peaceful demonstrations and selective buying campaigns which have had to be used in other communities. It takes manpower, time and energy which could be better directed at solving these problems which exist in Port Gibson and Claiborne County by mutual cooperation and efforts at tolerant understanding.
No one likes to have to resort to picketing and other kinds of demonstrations ... Just as no one likes to be the target of this kind of demonstration. But this sort of thing is inevitable unless there can be real progress toward giving all citizens their equal rights. There seems to be no other alternative.

There followed twenty-one needs (less two left blank therein, Numbers 4 and 5), as follows:

1. A community affairs committee, made up of both races, needs to be officially constituted by the Mayor and Board of Aldermen, the Board of Supervisors and the undersigned, so that future problems may be anticipated and solved before they reach a breaking point.
2. All public schools of Claiborne County and Port Gibson should be desegregated, both faculty, staff and student body this coming September, 1966.
3. Three Negro policemen should be employed in Port Gibson so that there will be impartial enforcement of the laws. The Negro policemen should be assigned to work with the white policemen on an integrated basis, with power to arrest any lawbreaker.
4. (Omitted)
5. (Omitted)
6. Negroes should be employed in the welfare office so that the County may demonstrate its good faith and impartiality-
7. All business houses in the county should comply with the spirit and letter of the Civil Rights Act of 1964 by treating all customers alike and according them the use of all facilities.
8. Verbal or physical abuse of citizens by law enforcement officers must cease and Negroes are not to be addressed by terms as “boy,” “girl,” “shine,” “uncle,” or any other offensive term, but as “Mr.,” “Mrs.,” or “Miss,” as is the case with other citizens.
9. Crossing guards are to be posted at all schools, not just the white schools.
10. All funerals shall be accorded police escort.
11. Negroes should be named to the Board of Education. And they should be Negroes satisfactory to Negro leadership.
12. Public improvements should as roads, street, lights and sewer system are most needed in predominately Negro residential areas now because of past neglect. A program for remedying this situation should be embarked on immediately.
13. The Mayor, Board of Aldermen, County officials, businessmen and church leaders should denounce all extreme groups.
14. The courtroom and all other public facilities are to be desegregated immediately by order of the proper officials. This applies to all educational, recreational and other public-owned facilities.
15. Immediate steps must be taken to insure the selection of Negroes for jury duty in as close a relationship to the population breakdown as possible.
16. Provision must be made for the use of Negroes as election officials and for all other public duties.
17. Official and semi-official boards and commissions, now and in the future, must include appropriate numbers of Negro citizens.
18. The immediate desegregation of the Claiborne County Hospital, staff, and patients.
19. Bus stations must be integrated so that Negroes may be able to use all facilities.
20. All snack bars should be removed from classrooms.
21. Salesmen should be barred from entering classrooms interrupting classes.

The letter closed with the request, “Please communicate with the undersigned so that we may arrange a meeting to discuss the details of solutions to these problems.” It was signed by Calvin C. Williams, Chairman, Alexander Collins, Secretary, and James N. Dorsey, Floyd D. Rollins, Nathaniel H. Jones, Walter L. Griffin, Sr., and Mack Tisdale.

On March 23,1966, a letter was addressed to all addressees of the March 14, 1966, letter, and to the Chamber of Commerce. It conveyed to its addresses the needs 4 and 5, omitted in the March 14, 1966, letter, expressed as follows:

4. All stores must employ Negro clerks and cashiers.
A. Two or more deputy sheriffs must be hired.
B. The city limits be extended to include Thompson Sub Division and all other areas where there is a concentrated group of citizens of Port Gibson.
C. A strong housing code should be adopted and enforced.
D. The teacher’s lounge should be restored for teachers use rather than a centralize area for selling.
5. That a Negro County Agent be employed, since there is more than 8,239 Negroes in Claiborne County.
A. That a full time home demonstration agent be employed to assist the farm women and young ladies to become effective Homemakers, including, planning, feeding, and caring for the farm families.

It ended with the statement, “We shall be awaiting your answer by April 1, 1966.”

In addition to the signatories to the earlier letter it was signed by Charles Evers.

This group and these objectives appear from the record to have been duly appointed and to have been arrived at and adopted by the NAACP in regular meeting.

Satisfactory response was not made during the interval prior to April 1, 1966, and, led by Evers, the boycott was begun on April 1,1966, with a march along the white business area of Port Gibson and with a speech by Mr. Evers on the undertaking being launched. Upward of a hundred witnesses were put on the stand during the trial, (most of them defendants called adversely by the complaints), and testified, and as to be expected in such case, varying accounts of the boycott were discussed from which the conclusion is overwhelmingly warranted that it was conducted in serious fashion with planning, and expertise in control.

The NAACP met about weekly at First Baptist Church of which the Reverend Dorsey, one of the signatories of the March 14, 1966, and March 23, 1966, letters noticed above, was pastor. There were the marches and the pep speeches usually a part of such undertaking. There were the pickets with their signs; the group of men almost fifty in number who were specially conspicuous because they wore black headwear and perhaps other black clothing, so that they would be easily distinguishable. There were the “Black Times” publications, enshrouded by very little mystery as to editorship, etc., wherein the names of those being boycotted periodically appeared as well as names of some observed breaking the boycott. Eastern States Retail Lbr. Dealers v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490 (1913). There came into being the successful black store, “Our Mart.”

The picket signs, among other messages, gave information that the boycott was that of the NAACP. Many of the picketing personnel were young children.

Regrettable and lamentable events which took place during the boycott, including the following: Dr. Martin Luther King, Jr. was assassinated on April 4, 1968, at Memphis under circumstances of common knowledge. On April 18, 1969, one Roosevelt Jackson was accused of interfering with law enforcement officers of Port Gibson in their effort to make an arrest of another. Later in that day policemen, one black and the other white, went to arrest him on the charge and a struggle resulted, details of which are clouded, ending in the fatal shooting of Jackson. At Dr. King’s slaying there arose generally an attitude of frustration among the blacks for whom he had worked and lived. This sense of loss is shown to have intensified the Claiborne County boycott as it also gained expression in incidents of significance. (It should be said here that there is evidence also in the record from which it might be concluded that the unfortunate event caused not even a ripple in the blacks’ undertaking.) The Jackson occurrence caused the boycotting blacks to become highly incensed resulting in their demand that the policemen involved be instantly discharged and even in their requirement that the entire police force be removed. Black activity took place at Jackson’s home, at the hospital to which he was taken in an act of futility, at the Courthouse, and at First Baptist Church. Members of the Mississippi State Highway Patrol were sent in to help control the situation. There was weapons’ firing, by whom is not clearly detailed in the record. Physical searches netted nothing in the way of weapons, but a search of a musical instrument in the church uncovered a number of weapons. The boycott which had reduced itself to some extent by the time of Jackson’s death was then intensified and the entire Claiborne County’s group of white merchants were brought within its prohibitions.

The group of men above noticed came into organized being about a month after the boycott was begun. They were variously called “Black Hats,” “watchers,” “guards,” “enforcers,” “Deacons,” or “Deacons for Defense.” Their assignment, or their reasons for existence, was described as for the purpose of seeing to it that blacks who would trade with the boycotted white merchants were made aware of the boycott and that their cooperation was desired, and for the blacks’ protection. There is testimony that these “watchers” organized themselves into a quasi-military group, drilled, bought weapons and ammunition, had target practice, two-way radios (automobile and “walkie-talkie” types), and they were sufficiently shown to have stood at corners or walked assigned areas, and stopping and interviewing would-be customers entering stores, within the area of the “watchers’ ” assigned patrols.

The chancellor rendered an able, detailed, analyzing opinion, fully covering the voluminous testimony. His portrayal, well supported in the record, presents a facet of the enforcement of the boycott:

The thread of fear and violence is woven throughout this case. Sheriff McKay testified that many times black people who wanted to trade with whites appealed to him for protection. He said at least 100 blacks complained to him that they had been interfered with when attempting to trade with white merchants. He said that when the “store watchers” relaxed the boycott would “loosen up,” particularly on the outskirts of Port Gibson and in Hermanville and Pattison.
Very shortly after the boycott started, Sheriff McKay was near Hudson’s Store when he noticed a group of black people gathered around a car parked in front of the store. McKay approached the crowd and said he heard the defendant Calvin Williams tell a black man named Darden that he (Darden) could not go into the store because it was under boycott. McKay intervened, whereupon, he said, he heard Calvin Williams say to Darden: “You can go in, but the sheriff here isn’t going to sleep with you at night.” Dar-den did not go into the white store.
The atmosphere of fear that prevailed among blacks from 1966 until 1970 is strikingly revealed in the testimony of many of the witnesses.
James Gilmore, a black man, ignored the boycott. On the night of August 22, 1966, Gilmore’s home was shot into. Elmo Scott, Jr., a member of the NAACP and of the “Deacons”, together with two other young black men, Calvin Bailey and James Whitney, were arrested for this act and were convicted. The Mississippi Supreme Court reversed and remanded the case, because of exclusion of Negroes from the grand jury. On retrial the jury was unable to agree. At the time of the trial, these people had not been retried.
Defendant Rudolph J. (Rudy) Shields, formerly of Chicago, was the principal figure in several altercations. He boasted that he was the “most jailed person in the Claiborne County boycott.” This man was the acknowledged leader of the “Deacons.”
Laura Cullens testified that she lived about a quarter-mile from the city limits of Port Gibson on Highway 18. She refused to join the NAACP, and she ignored the boycott. Her name, among many others, was called out at the NAACP meetings, and she was derisively referred to as an “uncle Tom.” She was vilified and abused. In November 1966 shotgun pellets were fired into her home.
Muriel Cullens, a son of Laura Cullens, did not observe the boycott and was the target of harassment by blacks. Cullens’ car was run into and badly damaged, and a brick was thrown through the windshield.
In April 1966 soon after the boycott was started, Johnny Cox, a black man, and his wife were stopped by “store watchers” who attempted to prevent Mrs. Cox from going into the O. K. Cleaners, a white-owned business, to get some clothing. They had to get police protection in order to go into this cleaning establishment. About a week later, shotgun blasts were fired into the Cox home near Hermanville. Pistol shots were fired at Cox.
James Bailey, a 200-pound ex-football player, testified regarding his activities as a “store watcher.” He was instructed to stop any black person he saw about to enter a white business house. He said that he had been a “bad boy” and had been convicted for molesting a child, resulting in sentence to the State Penitentiary. He was instructed to take the name of any black person going into a white-owned business and report same to defendant Pete Gusta. On one occasion, he stopped Willie Butler, an elderly black female whom Bailey referred to as “Nig” Butler, as she was going into the Piggly-Wiggly Store. Despite his warnings, she went into the store and purchased some items of groceries. He watched her house and saw groceries delivered there by a white-owned store. He instructed her to stop trading with whites, whereupon she told him she would trade with whom she pleased. Bailey went into this elderly woman’s yard and destroyed her flower garden by way of punishing her.
There is evidence in the record that an elderly black man called “Preacher” White (Deceased at the time of trial) was stripped of his clothing and whipped by a group of young blacks because he refused to honor the boycott.
Eddie Lewis, a black man, refused to join the NAACP and refused to honor the boycott. He was warned by Rudolph Shields to stay out of white-owned stores. Lewis purchased a bottle of whiskey at a white-owned liquor store, and was observed by Alfred Lee “Fats” Davis, a NAACP member and activist in the black boycott. Davis took the whiskey away from Lewis and denounced him in highly-uncomplimentary language for dealing with white people.
Willie Myles testified that he refused to stop trading with white stores. His name was read out at NAACP meetings as a “boycott breaker.” He said he received threatening telephone calls. On one occasion, the Port Gibson police had to give him an escort when a carload of young blacks began following him. He received a warning that he was going to be whipped for buying gasoline at a white-owned service station.
Jasper Coleman, a black man, testified that he did not join the NAACP and continued to trade with white merchants after being warned by Walter Griffin and Calvin Bailey. The tires on Coleman’s automobile were slashed.
Emerson Davis, a black commercial fisherman, testified that he refused to join the boycott. He testified that Rudolph Shields, Jimmy Ellis and three other blacks grabbed him, carried him down a street and beat him. He was denounced as an “uncle Tom.” He said that he received threats on his life. James Bailey told him that he was going to kill him (Davis).
Unquestionably, the word “got around” in Port Gibson and Claiborne County that physical harm, as well as vilification and ostracism, could very well be the lot of any black person observed trading with whites. As a matter of fact, these things were promised by the Field Secretary of the National NAACP, Charles Evers, on at least two occasions, and it is apparent that the black people believed him. This NAACP-sponsored boycott was a definite success insofar as economic damage to the white merchants was concerned, even though the victims — the white merchants — had no power to grant the demands made on the county and municipal authorities.
The testimony revealed that the defendant NAACP provided attorneys to defend black persons arrested and charged with violating the laws of Mississippi in connection with acts arising from the boycott; and this nonresident corporation posted bail bonds and on occasion paid fines of black persons convicted of criminal charges.

[It should be here noted that Evers promised, in what appears to have been a nationwide televised speech, that “if we catch you going in any of them racists white stores, we’re gonna break your ... neck.”]

Mrs. Leesco Guster, one of the appellants, testifying as to Preacher White’s alleged experience as a boycott breaker, said, “It was just talk, and I can’t recall where it came from, because when talk starts in a small town, it goes everywhere.”

Testimony by some of the appellant MAP’s witnesses tended to show fright on the part of the cooks in the kitchens of Head Start, a service supplied. by MAP, causing them to refrain from handling groceries from white grocers. Attorneys for appellees put into the record that they “will stipulate that all of the Head Start MAP employees in Claiborne County were afraid to do business with white merchants.”

The chancellor found, as he was bound to do from the record, that:

In carrying out the agreement and design, certain of the defendants, acting for all others, engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers. Intimidation, threats, social ostracism, vilification, and traduction were some of the devices used by the defendants to achieve the desired results. Most effective, also, was the stationing of guards (“enforcers,” “deacons,” or “black hats”) in the vicinity of white-owned businesses. Unquestionably, the evidence shows that the volition of many black persons was overcome out of sheer fear, and they were forced and compelled against their personal wills to withhold their trade and business intercourse from the complainants. (Emphasis added).

In Southern Bus Lines, Inc. v. Amalgamated Association of Street, Electric Railway and Motor Coach Employees, 205 Miss. 354, 38 So.2d 765 (1949), a decision involving a labor strike attended by violence against which, in part, an injunction was being sought by appellant, this Court said in quoting from Milk Wagon Drivers Union of Chicago, Local No. 753 v. Meadowmoor Dairies, 312 U.S. 287, 295, 61 S.Ct. 552, 555, 556, 85 L.Ed. 836, 842 (1941):

.. . Judges need not be so innocent of the actualities of such an industrial conflict as to find in the Constitution, state or federal, a denial of the right of Mississippi to conclude that the use of force was not the conduct of a few irresponsible outsiders. The Fourteenth Amendment still leaves the state ample discretion in dealing with manifestations of force in the settlement of industrial conflicts.
(205 Miss, at 361, 362, 38 So.2d at 770).

It appears from the demand letters noticed hereinabove that some of the areas for remedial action were within the power of the boycotted, and that others of them were public in their nature within the purview of the Port Gibson officials, the Claiborne County officials, and the Chancery Court. As to these public complaints, the merchants could only use the power of their influence to whatever degree such influence reached. The blacks expected the application of that influence and pressed into operation the boycott of the white merchants with that goal in mind. On April 18, 1969, when Jackson was killed, as noted above, at the hands of two policemen, one black and the other white, there was demand articulated that these officers be discharged, and the boycott was intensified and made again applicable countywide. Ira Thomas testified that, “the white merchants didn’t have anything to do with Jackson’s death — but you’ve got to hurt who you can .... ”

There was extended testimony relative to the demands for the employment of black citizens at responsible jobs, and witnesses expressed the view that these demands should be met even if either it meant the discharge of white employees already on these jobs or that there would be two employees doing the job requiring only one employee to do, demands for reverse racial discrimination, as found to be true in Hughes v. Superior Court of California, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950).

Appellees rely in part on Mississippi Code Annotated, section 97-23-85 (1972), which was adopted by the 1968 session of the Legislature and became effective July 30, 1968. Its constitutionality is vigorously attacked by appellants who assert that it is contrary to the right of free speech guaranteed by the First Amendment to the United States Constitution.

The boycott began April 1,1966. Section 97-23-85 was adopted in the 1968 legislative session, and went into effect July 30, 1968, when the boycott had been in operation for upward of two years. The statute clearly reflects no retrospective force, but only prospective. Mladinich v. Kohn, 186 So.2d 481 (Miss.1966), and the many decisions therein contained. We are of the opinion that the statute is not applicable to the present decision.

Appellees likewise, in part, rely upon our restraint of trade statute, section 75-21-1, et seq., and argue that the activity complained of operated to restrain their trade and their right to trade. The United States Supreme Court has seen fit to hold boycotts to achieve political ends are not a violation of the Sherman Act, 15 U.S.C. § 1 (1970), after which our statute is patterned. We, in turn, have been influenced by the decisions of that Court in interpreting and applying it. While economic goals were sought by appellants and while economic good was challenged and endangered in and caused to suffer by, the boycott, we find that the present decision may be made without application of the restraint of trade statute. United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). See also, State of Missouri v. National Organization for Women, Inc., 620 F.2d 1301 (8th Cir. 1980), appeal for cert. filed, 49 U.S. L.W. 3005 (June 25, 1980), No. 79-2039; and Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969).

The bill of complaint relies in part upon the common law protections which had formed the base for this Court’s decisions in Southern Christian Leadership Conf. v. A. G. Corp., 241 So.2d 619 (Miss.1970), and Southern Bus Lines, Inc., supra. We regard that law as determinative here.

Judge (now Chief Judge) Coleman of the Fifth Circuit Court of Appeals clearly stated in Smith v. Grady, 411 F.2d 181, 187 (5th Cir. 1969), that: “Any kind of boycott is unlawful if executed with force or violence or threats .... ” /if any of these factors — force, violence, or threats^is present^then the boycott is illegal regardless of whether it is primary, secondary, economical, political, social or other. All of these factors are here present, and the boycott was illegally operated and we do not need to examine into its type, whether primary or other.

The presence of a conspiracy is beyond peradventure. Southern Christian Leadership Conf., supra; Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So.2d 717 (1950); New York Mailers Unions v. National Labor Relations Board, 316 F.2d 371 (D.C.Cir. 1963).

An examination of our statute, section 97-1-1, and our decisions in Southern Christian Leadership Conf., supra; Mississippi Power & Light Co. v. Town of Cold-water, 234 Miss. 615, 106 So.2d 375 (1958); and Southern Bus Lines, Inc., supra, will reveal the fact that a conspiracy to be a conspiracy, must be tainted with illegality, there must be an agreement to accomplish an illegal objective, or an agreement to accomplish a legal objective by the use of illegal' means. The agreed use of illegal force, violence, and threats against the peace to achieve a goal makes the present state of facts a conspiracy. We know of no instance, and our attention has been drawn to no decision, wherein it has been adjudicated that free speech guaranteed by the First Amendment includes in its protection the right to commit crime.

The SCLC opinion, supra, brought under unfavorable study the matter of boycotts without advance warning as to grievances held against the boycott victim, the same as here exists.

Mississippi Code Annotated, section 97-23-83 (1972), adopted and effective from February 9, 1966, a date antedating the beginning of the boycott, makes it a criminal offense to threaten with bodily harm, intimidate, or coerce a person to prevent the offended person from doing business with another. This statute was applied in Shields v. State, 203 So.2d 78 (Miss.1967). Shields was one of those activists helping in the boycott, and was convicted of violating this statute. His case was reversed, however, because of deficiency in the jury list from which the convicting jury had been drawn.

That statute declares it to be a misdemeanor and punishable:

If any person shall in any manner threaten with bodily harm, intimidate or coerce another person to prevent said person from lawfully trading, or carrying on business, including buying or selling, he shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not more than one (1) year in the county jail or be fined not more than one thousand dollars ($1,000.00), or both.

That statute applied to, and was violated in, the coercion, intimidation, and threats which were a part of the boycott activity and contributed to its almost complete success.

The present case, in the relief sought and granted, the conduct of the boycott, and the applicable law, is so strikingly similar to this Court’s decision in Southern Christian Leadership Conference, supra, that that decision and the law therein held to be applicable are compelling here, and by it we are impelled to find that liability for damages attached to NAACP and, subject to some exceptions hereinafter noticed, to the individual defendants.

MAP, as earlier herein noticed, filed its own assignments of error incorporating those of NAACP, et al. It also assigned as error the holding that MAP was a part of the conspiracy to boycott illegally, and the chancellor’s rejection of its defense of duress, and further assigned as error the failure of appellees to furnish bill of particulars and the Court’s finding that it was subject to suit and damages award in the absence of consent by the United States Government.

MAP is a creature of Mississippi statute as a nonprofit corporation. Mississippi Code Annotated, section 79-11-1, et seq. (1972). It was incorporated on September 13,1966, for implementation of the government’s Head Start program, 42 U.S.C. § 2928, et seq., its participation therein being the provision of food, educational and other services to needy children in twenty counties of the state of which Claiborne County is one. The program is aimed specially at pre-school children of low-income families. It began operation in Claiborne County on January 16,1967, with the intention to buy groceries from black and white stores, which groceries would be needed for meals for the children being benefited by the program. This plan was immediately foundered by the boycott, causing inquiries, investigations, conferences, and planning within MAP and between MAP and boycott leaders and othersT'^ A program arrived at to buy from four black groceries and four white groceries was immediately abandoned because the Head Start cooks were afraid to do business with the white merchants (this fact established in the record by stipulation of counsel for appellees), and Evers threatened to banish the program from the county rather than to permit the expenditure of government money with white merchants contrary to the very boycott itself. Finally, MAP adopted formally a course of action which required the purchase of all groceries from black stores, and, if these could not meet the MAP needs, then purchases would be made outside the county.

MAP sought and obtained an opinion or opinions frorp its attorneys, upon which it issued non-participation guidelines in political matters.

The record does not warrant a finding that MAP conspired with any of the co-conspirators, nor that it acted as a principal or as a willing participant in the boycott program. Rather, in our view, it operated as it did through fear on the part of its cooks (all black) for their safety, and to avoid the destruction or great impairment of its beneficial program in the county. We are of the view that the able chancellor erred in including it as a judgment defendant, and, as to it, the decree will be reversed and judgment will be rendered here for MAP.

An adequate search of the record reveals to our satisfaction, also, that for insufficient proof, lack of proof, or otherwise, appellees did not establish their case against certain of the defendants, and that including them among those against whom money decree and injunction were awarded was erroneous. As to them, the cause will be reversed and judgment will be rendered here for them. These are: Priscilla Brooks, Mack Louis Davis, Ethel Graise, Charlie Harris, Albert Jackson, Bessie Newman, D. A. Newman, Henry Otis Preston, Roman Shorter, Leon Tarleton, Alex Dorsey, Ella Dorsey, Bobby Kelly, Beatrice Atlas, Lela Jones, Viola Robinson, Dora Shorter, Rosa Shorter, Annie B. Smith, Alonzo Warner, Bonnie Wells, Eli Brooks, Maggie Clark, Mary Durham, John Eggleston, John Ellis, Rachel Ellis, Mrs. E. J. Jennings, Clarence Lucas, Early Wren, Roosevelt Owens, Delores Smith, Lessie Mae Walls, Ethel Warner, Gussie Pearl Wilson, Willie Wilson, and Ruby Wren.

We next consider the amount of damages awarded by the chancellor to 12 complainants as detailed in the following schedule:

Loss of Earnings From Business 1966-1972 Loss of Interest on Earnings 1966-1972 Loss of Goodwill as of 12/31/72 Penalties TOTAL
Claiborne Hardware Company, Inc. $ 10,874 $ 3,313 -0- $ 500 $ 14,687
Q, H. McDaniel, Jr., d/b/a McDaniel Pharmacy 117,653 21,438 26,460 500 166,051
James E. & George Hudson, d/b/a Hudson Brothers’ Piggley Wiggly Store 174,315 40,882 -0-500 215,697
Joe Ellis, Mrs. Ben Mullen, & Miss Ella Mae Ellis, d/b/a George Ellis Food Store 27,101 7,040 -0-500 34,641
Waddy and Rosalie Abraham, d/b/a Jitney Jungle 70,351 12,213 59,153 500 142,217
Norman N. Ellis & Barbara B. Ellis, d/b/a Ellis Variety Store 52,447 4,236 96,633 500 153,816
W. H. Hay, d/b/a OK Cleaners & Shirt Laundry 47,889 7,951 26,740 500 83,080
Murad & Mildred Nasif, d/b/a M&M Superstore and Washateria 75,463 16,950 -0-500 92,913
Port Gibson Lumber & Supply Co., Inc. 2,500 Charles R. Dobbs, d/b/a Western Auto Associate 850 -0-500 3,850
Store 13,994 2,859 -0-500 17,353
Allen Motor Co., Inc. 2,468 839 -0-500 3,807
Mrs. Edgar A. McCaa, d/b/a Town & Country 11,302 2,458 8,327 500 22,587
$606,357 $121,029 $217,313 $6,000 $950,699

In addition, the chancellor allowed complainants $300,000 attorneys’ fees under section 93-23-85, Mississippi Code Annotated (1972). The award of attorneys’ fees was improper because the statute has no retroactive effect as stated earlier in this opinion.

We also hold that the chancellor was in error in allowing a penalty of $500 to each of the 12 complainants under section 75-21-9, Mississippi Code Annotated (1972), because our restraint of trade statute, section 75-21-1, et seq., Mississippi Code Annotated (1972), has no application to boycotts to achieve political goals.

The chancellor also allowed $121,-029 for loss of interest on earnings from 1966 to 1972. Reduced to its essential elements, this is simply an allowance for prejudgment interest and is not permitted under our decisions. In cases involving unliq-uidated claims for damages, interest can be allowed only from the time of judgment. Alton v. Wood, 300 So.2d 786 (Miss.1974); McDaniel Bros. Construction Co. v. Jordy, 195 So.2d 922 (Miss.1967).

The chancellor allowed the 12 complainants $606,357 for loss of earnings from business for the years 1966 to 1972 in the exact dollar amount set forth in Exhibit C-63 entitled, “Special Report Determination of Losses of 12 Business Establishments of Port Gibson, Mississippi, for the years 1966-1972 inclusive.” The report was prepared by a firm of CPA’s who calculated lost earnings upon the projection by Dr. Paul T. Oliver of the sales lost during the period. Complainants’ claim for damages must stand or fall on the accuracy of Dr. Oliver’s projection of sales, the underlying data upon which the projection was based, and the application by the accountants to each of the individual businesses.

Dr. Oliver, an associate professor of Economics at the University of Mississippi, testified as an expert and explained the graphs and computations made by him. Dr. Oliver made graphs of sales for the years 1960-65 and projected the sales for each business for the years 1966-72. The graphs depicted a trend line for sales which included an inflation factor of 3.2%. The difference between actual sales and the trend line sales represent his conclusions as to the dollar amount of lost sales for the years 1966-72. The accounting firm of Chapman, Redditt and Grantham then converted lost sales into lost earnings. The accountants explained the basis for converting lost sales into earnings as follows:

BASIS FOR CONVERTING LOST SALES INTO LOST EARNINGS
The percentage of net earnings to gross sales was computed for the six year period 1960-65 and averaged in order to determine the means of converting lost sales into lost earnings for 1966 and the years thereafter.
This percentage represents the average earnings which resulted from sales during a span of normal years without the influence of extraordinary events. The six year period (assuming the business was operating in the six prior years) gives a broad base for an accurate measurement of earnings. Accepted accounting procedures normally call for at least a five-year base in measuring business performance for other purposes.
METHOD OF COMPUTING LOST EARNINGS RESULTING FROM LOST SALES
In computing lost earnings resulting from lost sales, the following major assumptions were made:
(1) Each business should be viewed as a “going concern” which would have continued in business until the present (12/31/72) without a boycott.
(2) Lost sales as computed by Dr. Oliver are the basis for computing lost earnings.
(3) If recovery of sales is made above the trend line in any of the years subsequent to the initial period of loss, total recovery is assumed to have been made. Therefore, any losses of sales subsequent to such recovery are not used in determining lost earnings.

In computing lost earnings resulting from lost sales, the accountants added the gross sales for the base period, 1960-65, and divided this into the total net earnings for the base period resulting in a percentage representing net earnings. The projected sales with inflation were multiplied by the percentage of net earnings for the base period, the result being projected earnings. Actual earnings for each year, where applicable, were deducted from the projected earnings leaving the earnings lost. This method did not take into consideration any change in the pricing structure or mark-up of goods for sale. We note that gross profit, which is sales less cost of goods sold, decreased in some of the businesses for the period 1966-1972, which leads us to the conclusion that pricing structure of some of the businesses must have changed. When gross profits are reduced net earnings are affected. In order for the computation of lost earnings to be accurate, pricing policies of the businesses involved must be taken into consideration.

The conversion of lost sales into lost earnings was based on Dr. Oliver’s calculations of projected sales with inflation. Dr. Oliver was furnished gross sales for each of the businesses for the base period and from this date projected sales with an inflation factor added.

Dr. Oliver candidly admitted that he made no study of all facts relevant to management of the businesses to determine what caused deviations in the base period. He said his study showed that something happened to all 12 businesses almost simultaneously, and if he were to make a study to discover all facts relevant to the fluctuation in gross sales he would consider population growth, disasters, and other things of like nature. He stated he would have included a number of factors other than gross sales and specifically listed: managerial skills, a change in amounts spent on advertising, increases in fixed costs of employees and decline in the availability of money to spend. He said the only factor communicated to him was the boycott and that there might well be other factors. He assumed the impact on sales was caused by the boycott and concluded the boycott, as an economic sanction, had a very dramatic impact, which was its goal. He testified that there was a recession in 1970 and he would not exclude this factor from the trend sales line but did not show that the effect of the recession was included. He stated the recession would have had a dramatic effect on the business of Claiborne Hardware.

One of the problems with the projected sales as calculated by Dr. Oliver is that his calculations failed to take into consideration other facts which we feel would affect the estimate of future sales. (1) Would additional inventory be required to increase sales? (2) Would the individual complainants have the capital necessary to increase the inventory, if necessary? (3) What would the additional capital cost? (4) Would the physical plant of each business be large enough to house an increased inventory or would additions be necessary? (5) Was there any change in management or employees that would affect the volume of sales?

We are of the opinion that these factors, together with the factors mentioned by Dr. Oliver, should be taken into consideration in making an estimate of future sales and that inclusion of all of these factors, or their exclusion with an explanation, if not applicable, is necessary for one attempting to prove lost earnings.

Another problem with the projected sales with inflation is that the gross sales furnished Dr. Oliver for the base period are not consistent. In some gross sales included sales taxes, in other sales taxes were excluded, and in some the inclusion or exclusion of sales tax varied from year to year. We recognize that these variations might have a minimal effect on the projections, but since this case is being reversed for retrial on the issue of damages, the gross sales for the base period should be stated accurately and consistently.

The chancellor also allowed some of the complainants damages for the loss of good will. Good will was defined in the transmittal letter as follows:

Goodwill is an intangible asset which exists when the actual or expected earnings produced by the assets of a business, exclusive of goodwill, are in excess of a normal return. Goodwill is generated by any causes of attractive earnings results, such as satisfactory customer relations, location, good employee relations, or “know-how.”
The measurement of goodwill is most commonly necessitated when a business is purchased in order to determine a suitable purchase price for the entire business entity and is, therefore, often determined by sheer bargaining.

When a business was sold by a willing buyer to a willing seller, good will is the amount of the purchase price in excess of the tangible assets of the business.

The accountants also explained, in their letter of transmittal, their method of arriving at good will.

(3) Capitalization of Excess Earnings — a percentage return on the average annual value of the tangible assets of a business is determined, using a period of years immediately prior to the valuation date. The amount of the percentage return on tangible assets, thus determined, is deducted from the average earnings of the business for such period and the remainder is considered to be the amount of the average annual earnings from the intangible assets (goodwill) of the business. This amount capitalized at an applicable percentage is the value of the goodwill.
The Capitalization of Excess Earnings Method is considered the most theoretically sound approach by standard accounting texts and is established by the Internal Revenue Service as its accepted guideline in Revenue Ruling 68-609. (Revenue Ruling 68-609 is cited in its entirety in Appendix A of this report). We have, therefore, used this method as the basis for our computation of lost goodwill. A brief summary of our computation follows. For a more technical explanation of our application of this method, see Note 4 on page 8.
Our computation is made as of December 31,1972, and is based on the earnings of the most recent year. We have basically considered the loss of the asset, goodwill, to the business as of that date as if a valuation were made for the sale of each concern. The reason we have used the most recent year’s results rather than an average of prior years, is that in this particular case, a potential purchaser would evaluate the current degree of recovery from prior losses. The use of 3 to 5 years prior earnings average would tend to overstate the amount of goodwill lost and would also result in a loss of goodwill for many businesses which have fully recovered per Dr. Oliver’s computations.
Recovery from the boycott impact, according to Dr. Oliver, is evidenced by the crossing of the actual sales line above the “trend line” in any year after the initial boycott impact in 1966. For example, in the case of Hudson on page 34, actual sales exceed “trend line sales” for the year 1972. Therefore, according to Dr. Oliver, Hudson has recovered from the boycott impact, and no loss of goodwill can be determined in his case (See page 3 9y.'
Since earnings lost in the year 1972 resulted from unfavorable external events, they were, therefore, a loss of return on the intangible asset of goodwill, (i. e., satisfactory customer relations, etc.). We have, therefore, capitalized the amount of earnings lost in 1972 at 15%, the rate of expected return from intangible assets as set forth in Revenue Ruling 68-609 for businesses with a relatively small risk factor and stable earnings. The resulting amount is the lost goodwill as measured at 12/31/72. (See the computation for McDaniel on page 30).

As we understand the exhibits and testimony of the accountants they did not employ the method set forth in their transmittal letter. We fail to find that the accountants computed the percentage return on the tangible assets of the businesses involved in this case and deducted this amount from net earnings. We also note that Revenue Ruling 68-609 requires sole proprietorships or partnerships to deduct from earnings a reasonable amount for services performed by the owners or partners engaged in the business. This was not done.

Failure to compute good will properly resulted in an overvaluation of good will. For example, Barbara B. Ellis and Norman N. Ellis, doing business as Ellis Variety Store, were awarded $96,633 for loss of good will. The income tax returns for these complainants show a beginning inventory for the years 1960-68 as follows:

1960 $7,058.27
1961 4,774.15
1962 3,174.08
1963 4,595.96
1964 6,146.34
1966 7,659.26
1966 8,479.32
1967 6,794.19
1968 9,998.93

The tax return for also showed other tangible assets used in the business amounted to $3,000. Adding these tangible assets to the beginning inventory for 1968 makes a total of $12,998.93 of tangible assets used in the business. An allowance of $96,633 damages for loss of good will is a gross overvaluation of good will.

We reverse the allowance for loss of good will to each complainant and remand for further evidence on loss of good will. On retrial the court should determine whether a business should be permitted to recover profits on lost sales plus loss of good will. It appears to us there is a strong probability that allowing recovery of profits on lost sales plus loss of good will would pyramid damages and amount to double recovery. We express no opinion on this question but expert testimony should deal with the question on retrial.

We are satisfied that complainants suffered some damages resulting from the boycott but are of the opinion that the amount allowed was excessive under the evidence presented.

We hold the chancellor erred in failing to reduce the award of damages to complainants McDaniel, Norman N. Ellis and Barbara B. Ellis for the amount earned by them while they were out of business. Southern Christian Leadership Conference, Inc. v. A. G. Corp., 241 So.2d 619 (Miss. 1970).

Complainants were under a duty to mitigate damages and any award made to complainants shall be reduced by their earnings.

AFFIRMED IN PART AND REVERSED AND RENDERED IN PART ON LIABILITY; REVERSED AND RENDERED IN PART ON DAMAGES; REVERSED AND REMANDED IN PART ON DAMAGES.

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

      . Whitney v. State, 205 So.2d 284 (Miss.1967).


source: Caselaw Access Project

author: COFER, Justice,

license: Public Domain

text:
    David A. HARRIS v. MISSISSIPPI STATE BAR.
    Misc. No. 832.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Rehearings Denied March 4, 1981.

      David A. Harris, Ross Barnett, Sr., Jackson, for appellant.
    Jimmy L. Miller, Jackson, for appellee.
    Before ROBERTSON, SUGG and COF-ER, JJ.
   COFER, Justice,

for the Court:

Attorney David A. Harris has appealed from the action of a Complaint Tribunal assembled under Mississippi Code Annotated, section 73-3-301 et seq. (Supp.1980). The Mississippi State Bar has filed cross assignments of error.

Appellee (Bar) filed its petition alleging several counts of violations of rules governing conduct of attorneys, in three matters wherein the appellant (Harris) was attorney:

(1) A suit in Alabama involving some interests in land held by Harris’ clients and judicially established for them and sold by the Court, this being during 1973.

(2) A domestic relations suit in Hinds County, wherein Harris represented a party. This took place in 1975.

(3) A claim by the same client as next above involving an automobile collision in 1976.

The bar invoked several disciplinary rules approved by this Court of which applicable ones appear as the appendix to this opinion.

After hearing held, the Complaint Tribunal found Harris guilty of certain of the assertions of the Bar as to the Alabama suit, and imposed upon him a three year suspension from the practice of law. It also provided a private reprimand of him for questionable application of his fee arrangement to funds received by his clients in the automobile collision settlement. He has not appealed from the reprimand feature of the tribunal’s orders. The Bar has assigned as error the failure of the tribunal to order disbarment, in considering the three areas of the accusations in isolation, and in its failure to find as sustained the charge that Harris had overcharged his client for services in the collision adjustment handling.

Both he and it complained of the tribunal’s failure to reveal its view of a correct fee in the Alabama matter.

We consider the transactions in the Alabama matter. About March 1973 Harris was approached, and a contract was executed, by Lonnie C. Johnson and William N. Rucker, Jr., who spoke for themselves and apparently undertook to speak for others, including one Brick Mason, who claimed interests in the land. The contractual fee and Harris’ conduct relative thereto are the bases for the suspension by the tribunal, mentioned above.

The services undertaken were “for recovery of our interest in ...” and the compensation therefore was to be “.. . 33%% of any recovery made before suit is filed, 40% thereafter, through trial; 50% for appeal.” It was strictly a contingent fee: “... and if no recovery is made, I will not owe my attorney any sum whatsoever as attorney’s fees.”

Harris associated one Scott, an Alabama attorney, in the suit. Suit was filed, wherein Harris asked, for his clients, that the court allow attorney’s fee for his client. The Alabama court adjudged the claims against the land, and the share, subject to such claims, each owner held therein, and what percentage each was entitled to receive from the proceeds derived from the court’s sale of the land. In its order, the court fixed a fee of $1,875 to be paid to the plaintiff’s attorneys (Harris and Scott) and a fee in the same amount to be paid to the defendants’ counsel. It found an earlier realtor charge was owed and should be paid out of the sale proceeds; it found that two defendants were entitled to reimbursement for amounts they had respectively paid on account of the land.

The court-ordered sale grossed $16,200, from which there were paid several deductions in the total amount of $11,832.90, leaving a net amount of $4,367.10 to be distributed to the several owners of interests therein, with $2,608.75, belonging to the Harris litigants. Peeling that the court had erred, Harris filed petition for review by the court which was of no avail. No appeal was taken by any party and the orders of the court became a verity.

The share of Harris’ clients was paid to Scott, who took from the whole remittance his one-half (agreed division between Harris and Scott) of the court-fixed fee and one-half of the 40% of the $2,608.75, identified hereinabove, and sent the remainder of the recovery to Harris.

Harris, on the other hand, applied the 40% against the clients’ share of the gross recovery, and emerged with the claim of $4,164.05, as fee, and contended with Johnson and Rucker that he was entitled to $431.87 in addition to what he had received. (The record shows no effort to collect this claimed additional amount).

Weeks passed and the disappointment of Johnson and/or Rucker, in particular, brought Harris and Johnson into a conference which had the participation of Attorney Roberts, Johnson’s friend in whose behalf he was in the conference. There the parties arrived at an understanding not very clear in the record. When Roberts had left the conference, Harris gave to Johnson and Rucker a check each in the amount of $154, and wrote up an agreement which was signed by the three of them, wherein it was stated that Johnson and Rucker would each be entitled up to $1,500, less $154, of any proceeds “finally awarded [by the Alabama Court] on rehearing of prior disbursement by register.” (It is repeated here that the petition for rehearing was denied.) The $154 checks showed that they were partial disbursements.

In his fee activities with Johnson and Rucker, had he otherwise been correct in his computation for the fee, he took incongruous positions that (1) he was bound by the Alabama’s court order and that, in addition, there was more that that Court might adjudge against them, and (2) his attorney-client relation is by a Mississippi contract, and the Alabama court could not direct them as to payment of the fee.

The Alabama suit was brought on behalf of multiple plaintiffs including one Brick Mason, as shown above. When the trial began Mason disclaimed his status as a plaintiff, and the record is sufficient to conclude that he actually lent assistance to the defense, or otherwise identified himself with the defendants. In spite of this fact, Harris continued to calculate his fee as if Mason’s share was involved, did not reduce the total percentage of his clients’ share to eliminate therefrom Mason’s recovery, and took the position that he was entitled to payment of the fee represented by Mason’s share, because Johnson and Rucker occupied or assumed a position of agency toward Mason and were liable to Harris if Mason did not pay him.

It is to be noted further that while his fee as calculated by him exhausted all of the shares of the other clients whom he represented, his further transactions with Johnson and Rucker were between him and the two of them, and he made no further payment to those other clients (as would have been consistent with the $154 he paid to Johnson and Rucker each), and he did not include them in the agreement to share to any extent in any benefit that might be realized from the Alabama court rehearing.

We are at a loss to understand how the shares of the clients other than Johnson and Rucker could have been exhausted, in view of the fact that their shares bore the same proportions of value and liability, as did those of Johnson and Rucker, nor do we see how it might be argued that these dissident and complaining clients should receive other, partial amounts of $154 each while those clients of lesser proportions should receive nothing, and should not be included in any subsequent distribution expected to be received in the rehearing or in any other rehearing.

One of Harris’ contentions throughout the tribunal hearing and here is that the agreement with Johnson and Rucker amounted to an accord and satisfaction of a fee dispute, and the case was settled thereby. We do not agree that the Bar’s and the public’s interest ought thereby to be satisfied, and that they, the three of them, might be able to cut off activity on the part of the Bar toward jealous preservation of the image of the courts and Bar of the state.

Harris contends that his was a “gross recovery” contract, but it is illogical to suppose that any party to the agreement considered that, in recovering his interest, he might, in addition to the loss of all that interest, become deeply indebted to his attorney. Logic leads us to the conclusion that the “interest” owned by the clients would be an interest from which had been pared enforceable demands there against held by others, as was here done.

The parties differ in their application of Koehring Co. v. Hyde, 236 So.2d 377 (Miss.1970). That opinion, quoting from 7 C.J.S., Attorney and Client § 191(b) p. 1091, says:

... The amount actually recovered, within the meaning of this rule, is the net amount allowed by the judgment less the amount of any claim, expense or offset that may properly be deducted therefrom .... (236 So.2d at 386).

It is true that (1) the plaintiffs laid upon the Alabama court the responsibility for fixing the fee, by their very pleadings, and (3) the fee of $1,875 was fixed and there was no appeal from the allowance thereof. We are of the view that they obtained a judicial consideration of their fee, and are bound by it. We are of the further view that the fee of $1,875 was adequate under the facts and the retainer agreement. The fee of $1,875 allowed by the Alabama court is larger than a fee reached by taking 40% of the $4,367.10, adjudged as distributable proceeds of the sale to be disbursed to all parties in interest.

We affirm the tribunal’s conclusion that Harris seriously erred in the charge he made, the misrepresentations of which he was guilty, and in his failure, as to the further fee transactions with Johnson and Rucker, to include the rights and interests of all of his clients therein.

The Bar has pressed for Harris’ disbarment, and takes exception to the tribunal’s consideration of each of the three areas of accusation on a separated, isolated basis. While, in its disposition of the complaint, it has given attention separately to the Alabama matter, the domestic relations matter, and the collision settlement, there is nothing in the record to lead us to the conclusion that in fixing the suspension span of years, it did not consider the involvement or lack of involvement of Harris in all three of the phases of the complaint and its conclusions as to each of these charges.

We fail to find reversible error in any of the matters assigned as error, by Harris or the Bar, and affirm the tribunal in its findings and conclusions.

We are of the view, however, that the tribunal’s sentence is in excessive length, on consideration of the entire record, keeping in mind the accusations made and the purpose of our visiting sanctions on attorneys falling below our standards of behavior. We reduce the suspension to one year and fix that length as the period of his suspension.

AFFIRMED AS TO FINDINGS; PERIOD OF SENTENCE REDUCED TO, AND FIXED AT, ONE YEAR.

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

BOWLING, J., took no part.

ADDENDUM

DISCIPLINARY RULES

DR 1-101 Maintaining Integrity and Competence of the Legal Profession.

[A] A lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his application for admission to the bar.

[B] A lawyer shall not further the application for admission to the bar of another person known by him to be unqualified in respect to character, education, or other relevant attribute.

DR 1-102 Misconduct.

[A] A lawyer shall not:

[1] Violate a Disciplinary Rule.
[2] Circumvent a Disciplinary Rule through actions of another.
[3] Engage in illegal conduct involving moral turpitude.
[4] Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
[5] Engage in conduct that is prejudicial to the administration of justice.
[6] Engage in any other conduct that adversely reflects on his fitness to practice law.
******

DR 2-106 Fees for Legal Services.

[A] A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.

[B] A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:

[1] The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
[2] The likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer.
[3] The fee customarily charged in the locality for similar legal services.
[4] The amount involved and the results obtained.
[5] The time limitations imposed by the client or by the circumstances.
[6] The nature and length of the professional relationship with the client.
[7] The experience, reputation, and ability of the lawyer or lawyers performing the services.
[8] Whether the fee is fixed or contingent.

[C] A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case. ******

DR 6-101 Failing to Act Competently.

[A] A lawyer shall not:

[1] Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
[2] Handle a legal matter without preparation adequate in the circumstances.
[3] Neglect a legal matter entrusted to him.

******

DR 7-101 Representing a Client Zealously.

[A] A lawyer shall not intentionally:

[1] Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 1-101[B]. A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
[2] Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
[3] Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102[B],

[B] In his representation of a client, a lawyer may:

[1] Where permissible, exercise his professional judgment to waive or fail to assert a right to position of his client.
[2] Refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal.


author: SUGG, Justice, for the Court:

text:
    Teresa CARLISLE v. STATE of Mississippi.
    No. 52348.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    Rehearing Denied March 4, 1981.

      Albert S. Johnston, III, Karl A. Steinber-ger, Johnston & Steinberger, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   SUGG, Justice, for the Court:

Defendant was convicted of murder and sentenced to life imprisonment by the Circuit Court of Jackson County, December 5, 1978. On appeal defendant assigns the following errors:

1. The court erred in overruling the defendant’s motion to dismiss pursuant to Section 99-17-1, Mississippi Code of 1972, Amended.
2. The trial court erred in failing to exclude the testimony of state’s witness Long.
3. The appellant did not receive a fair and impartial trial.

Defendant contends she was denied the right to a speedy trial under the provisions of section 99-17-1 Mississippi Code Annotated (Supp.1976).

Defendant has been tried four times, found guilty three times, and in another a mistrial resulted after a jury could not agree on a verdict. The chronology of the case follows:

October 14,1975 Defendant indicted.
November 14,1975 Defendant arraigned.
November 14,1975 First trial — defendant convicted.
December 11,1975 Motion for a new trial sustained.
January 12, 1976 Second trial — a mistrial was declared when the jury could not agree on a verdict.
February 10,1976 Third trial — defendant convicted.
July 27, 1977 Defendant’s conviction reversed by the Supreme Court — Carlisle v. State, 348 So.2d 765 (Miss. 1977).
August 16,1977 Supreme Court mandate issued.
December 4, 1978 Fourth trial — defendant convicted.

Defendant’s fourth trial commenced December 4, 1978, which was 475 days after the mandate of the Supreme Court was filed in the Circuit Court of Jackson County. Section 9-7-49 Mississippi Code Annotated (1972) provides for four terms of Circuit Court to be held in Jackson County. The terms begin on the second Monday of April, the second Monday of July, the first Monday of October, and the second Monday of January in each year.

The case was set for trial during the October, 1977 term of court but was continued because of the absence of one of the witnesses for the state. No order of continuance was entered on the minutes of the court but counsel for defendant agreed that the case was continued because the subpoena on the witness was not served. The case was next set for trial during the January, 1978 term but was continued on motion of the defendant. The case was set for trial at the April, 1978 term but was again continued on motion of the defendant. The case was not tried during the July, 1977 term but her last trial began on December 4, 1978, at the next term of court.

The three continuances which were granted, one for the state and two for the defendant, should be deducted from the computation of the total time elapsed. The continuances were for a period of 282 days from the beginning of the October, 1977 term to the beginning of the July, 1978 term. After deducting the 282 days delay caused by continuances from the total time elapsed of 475 days, 193 days remain. Defendant was tried within 270 days of the filing of the Supreme Court mandate in the Circuit Court of Jackson County.

We have made the above computation to show that defendant was tried within 270 days of the date the mandate was filed; however, we are of the opinion that section 99-17-1 does not apply for the reasons hereinafter stated.

Some states take the position that under speedy trial statutes, a mistrial constitutes a trial and therefore the statutory period begins anew. Other states hold that when a mistrial results, the speedy trial statute has been complied with and the time for retrial is discretionary with the court. At least one state follows this approach with the additional requirement that the retrial must not be delayed longer than the time limitation provided by the speedy trial statute.

In Ruester v. Turner, 250 So.2d 264 (Fla. 1971) the Florida Supreme Court summarized the positions taken by other states with reference to speedy trial statutes after a mistrial and stated:

We now agree with those courts that have determined that if a mistrial results, compliance with the statutory requirements is satisfied. The time for retrial then becomes a matter of discretion with the trial court, which is to be measured by constitutional standards of reasonableness and fairness under the constitutional speedy trial right.... (250 So.2d at 267)

We agree with the conclusion stated in Ruester and hold that if a mistrial results, or if a case is reversed on appeal for retrial, compliance with section 99-17-1 is satisfied. The time for retrial then becomes a matter of discretion with the trial court to be measured by the constitutional standards of reasonableness and fairness under the constitutional right to a speedy trial as enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker the United States Supreme Court announced a four part balancing test involving the following four factors:

1. Length of delay,
2. Reason for delay,
3. The defendant’s assertion of his right,
4. Prejudice to the defendant.

The Supreme Court, in Barker, promulgated the balancing test because, “The right to a speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied.” The balancing test set forth in Barker must be applied on a case by case basis under the particular facts of the case under consideration.

Applying the Barker balancing test, we find that the case was delayed 475 days. Defendant had been twice convicted of murder but apparently was free on bond before her fourth trial because one of the witnesses for the state testified that the defendant moved into the same apartment complex that the witness lived in. The Supreme Court mandate was filed in the Jackson County Circuit Court on August 16, 1977, during the July, 1977 term which convened on July 11. This was an eight week term and only two weeks and four days remained during this term of court after the mandate was filed. Continuances were granted at the next three terms of court which carried the case to the July, 1978 term. At the July, 1978 term the judge presiding at the term had been appointed to act in the place of one of the circuit judges of Jackson County who was ill at that time. The presiding judge recused himself because defendant was a former client of his and he was associated with defense counsel at the time defendant employed defense counsel. The case was tried at the next term of court. We hold that, although there was a long delay from the time the mandate was filed in the trial court until defendant was tried, most of the delay was brought about by continuances which were granted, so we hold defendant was not denied a speedy trial under the first two factors of the balancing test.

It is also noted that the defendant did not assert her right to a speedy trial and she did not allege any prejudice that flowed from trial delay. When the four factors of the Barker balancing test are weighed in this case, we are of the opinion that defendant was not denied her right to a speedy trial.

Defendant next argues that testimony of Mrs. Jo Ann Gibson Long should have been excluded. The witness was placed on the stand and asked if she knew Tom Car-lisle, the deceased. She responded, “I can’t answer.” The court excused the jury and the witness’ attorney stated to the court in chambers that the prosecuting attorney was advised that the witness “was endangering her respect” and the witness refused to answer on the grounds it might incriminate her. He stated the witness would refuse to answer every question except her name and address. The court then noted that the witness could only invoke the Fifth Amendment on matters that would incriminate her. He stated that if the court could be shown where any question would be incriminating to the witness or cause her to be in jeopardy of criminal prosecution, he would listen to the attorney. The court noted, “It either has to be one of two things. Either you think she has perjured herself before, or is about to perjure herself at this time. Am I right?”

The attorney for the witness then stated that the witness had told the district attorney that she had been treated for drugs in the hospital and that she no longer had any memory of the events that took place at the time of Thomas Carlisle’s death. He said he anticipated that the district attorney would charge her with perjury if she stated she did not have any recollection and for that reason he advised her to claim her Fifth Amendment rights. He suggested, “If the judge wants to grant her complete immunity that’s in private with the court.” He further stated that while the jury was out he wanted to get the ground rules laid as to the proper method for the witness to claim the Fifth. The district attorney then stated that he was willing to grant immunity if she said anything about the homicide that would incriminate her.

The court observed that the witness had testified three times and he could not see where there was any incrimination involved. The witness’ attorney then asked, “Will they offer her immunity as to any possible perjury in the past?” The court said that if she had perjured herself in the past he would place her in the hands of the sheriff to await the action of the next grand jury. The jury was returned and the witness was again asked if she knew Tom Carlisle. The witness refused to answer on the grounds that it might incriminate her. The judge again excused the jury and she was again asked if she knew Tom Boy Carlisle. She answered:

I can’t answer the question, I’ve tried so hard to block this out of my mind. I’ve been to three mental hospitals, in the past 3 years. I’ve been under about 5 different psychiatrists but I just can’t remember none of it. I can’t.

The court then remanded her to the custody of the sheriff, whereupon the witness’ attorney requested permission to question the witness. In response to questioning the witness stated she could not recall because she had no memory due to her treatment for drugs and psychiatric treatment, whereupon the court interrupted and remanded her to jail.

The witness was recalled later and testified in detail about the homicide and was subject to a lengthy and searching cross-examination by one of the defendant’s attorneys. On cross-examination defendant introduced the following affidavit:

Personally appeared before me, the undersigned authority in and for said county and state, the within named, Jo Ann Long, who being first duly sworn, states on oath that she is the affiant in this affidavit: that she has been a witness in Teresa Carlisle trials of the past: but, had a nagging worry that the testimony she gave may not have been the truth but the suggestions planted in her mind by “others”.
That since the trials, she eventually had to be hospitalized in East Mississippi Hospital for drugs, and her present mental condition is such that she no longer has any memory or recollections of the events that took place at the time, during, and after Thomas Carlisle’s death, and does therefore refuse to testify, on the grounds it may tend to incriminate her.
That this affidavit is not made through collusion, neither was I offered any promises of reward, nor intimidation of threats to make such, but the above and foregoing facts and allegations are true as therein stated to the best of my knowledge and belief.
/s/ Jo Ann Long
JO ANN LONG
Sworn to and subscribed before me this, the 2nd day of December, A.D.1978.

Following are excerpts of the cross-examination of the witness by defendant’s counsel.

Q. All right. I am calling your attention to about 2 months ago. Did you go to the Defendant’s apartment at Oak-wood Apartments and talk with her in the presence of another lady?
A. Yes.
Q. At that time, about 2 months ago, is that correct?
A. 2 or 3 that’s right.
Q. And that was at Oakwood Apartments?
A. Yes.
Q. You lived in these apartments and so did the defendant, is that correct?
A. That’s right.
Q. And at that point did you not tell the Defendant in the presence of this other lady, that you had done enough, that you didn’t want to testify anymore and that you had lied before?
A. No sir, I never said that I had lied. I said I didn’t want to testify again because I was tired of testifying. I’ve done it about 6 times and I don’t get paid for it at work or nothing else and I’m sick of it.
Q. And did you not tell her in the presence of this other lady that you didn’t know what happened at the time of the accident?
A. No sir. I knew what happened.
Q. Now subsequently to that, maybe 2 or 3 days later and on a weekend did you not come to my house?
A. Yes sir I did.
Q. In the presence of the Defendant?
A. Yes sir I did.
Q. At my house did you not ask me what would be the ramifications if you testified that you had not told the truth and if you changed your testimony what would your problems be? Did you not ask me that?
A. Would you repeat that question please?
Q. Did you ask me the question, tell me that you had not told the truth and if you changed your story what would be the ramifications and what would happen to you.
A. Mr. Johnston, the only thing I said was that I did not want to testify again.
Q. Did you not ask me to represent you?
A. I never asked you to represent me.
Q. Let me ask you this question. What was the purpose of coming to my house?
A. It was because I think I was thinking at the time, that me and the Defendant have both been through a lot of nightmares and I thought if maybe I didn’t testify it would help a lot. And besides it was getting my nerves so bad and everything and I’ve been to a lot of psychiatrists and they didn’t even want me to think about this anymore. That’s the reason I did it. I just have feelings for other people too.
Q. When are you due for another treatment of Methadone?
A. Tomorrow.
Q. Tomorrow. Mrs. Long, has anyone said that they would take the Methadone away from you if you didn’t testify today or yesterday?
A. No.
Q. No one?
A. No.
Q. Mrs. Long, after, you were brought out of the jail, did you go over your testimony or part of it in the District Attorney’s office?
A. Before I came back up here?
Q. Yes ma’m.
A. No. He offered me the paper to read and I told him I didn’t want to even look at it.
Q. What paper?
A. My testimonies in the past.
Q. Isn’t it true that the reason that you didn’t want to testify yesterday and today is because you’re not sure that you are telling the truth?
A. Whatever I’m saying is the truth. Some of it I may not remember but what I’m saying is the truth.
Q. Isn’t it true that you have told numerous people that you are sorry you had testified before?
A. I’m not sorry I testified. It’s something I had to do.
Q. Isn’t it true that you signed an affidavit on December 2 stating that you were unsure of your testimony?
A. If you’re talking about that statement I’d like to explain if I may?
Q. Go right ahead and explain.
A. There was a paragraph, if I could see it I could show somebody what I was talking about.
Q. All right. I’ll hand you the piece of paper you were going to explain.
A. Okay. I came to Mr. Ken Martin and I told him that I didn’t want to testify again because of my nerves and I’ve been trying to block the whole thing out since the last time I testified. Okay, Mr. Martin had some fellow typing on the typewriter. I just came up there to talk to him, and the minute I was up there, he was typing all this bull up on the typewriter and he said now just sign this and so I said wait a minute, let me read it first. And I said now this first paragraph here where it says I may not have told the truth in the past, I said I don’t want that put in there because that’s a lie. I said that is a lie, the rest of it now I want you to put why I don’t want to, and nothing like that. And he underlined, he said “may not have been the truth” he said that’s just a legal term right there, “may not have been the truth” that don’t necessarily mean that you lied before but it may not be the truth. He said now you don’t want to testify do you, so you sign this. That’s what he told me.

On redirect examination the witness stated that paragraph one of the affidavit was not true and explained:

A. This one was a lie. He told me if I wanted to get out of testifying I had to put that in there, I had to have some reason — He said that don’t necessarily mean you lied in the past. It may not have been the truth is what he told me. And I said well I don’t want to lie and he said you’re not going to lie. I said “I don’t want to.” I said, “The only reason I want to get out of this, is because I want to block this whole thing out of my mind.” I said, “I have never, never lied in the past.”
Q. Okay. On how many occasions have you testified in this matter, please ma’m?
A. 1 preliminary and 3 other trials.
Q. To your knowledge, has your testimony been the same each time?
A. Yes. It’s always been the same.
Q. To your knowledge, is there a transcript of your testimony right there on that table?
Q. What was this Fifth Amendment thing you stated on the stand yesterday? What was that all about?
A. I didn’t even know what he was talking about. Something to incriminate me. He told me I had to say that or I wouldn’t even be able to not to testify at all if I didn’t say that. And I said incriminate me about what, I haven’t done anything I can think of to incriminate me.
Q. You stated previously that you were on Methadone. He has asked you many questions about this Methadone. How long have you been on Methadone?
A. A year and a half.
Q. Do you have a job?
A. Yes I have a job.
Q. Where do you work?
A. I work at Litton in the x-ray department. I’ve been working there for three years.
Q. Have you continued your job along with this Methadone?
A. Yes I have.
Q. How long until you complete this program?
A. I’m almost through now. I’m on a very small amount right now. I never have dirty urine anymore.
Q. What does that mean?
A. That means I’m clean. I’ve been clean. They check spontaneously or they don’t let you stay on the program.
Q. I can’t ask you a leading question, but tell me what that means?
A. Well, they just, you have a urine check spontaneously maybe 2 or 3 times a week. If you come up bad twice you’re off the program.
Q. What does bad mean?
A. If you show any type of narcotics in your bloodstream or in your urine, you can’t stay on the program.
Q. Are there any other reasons you didn’t want to testify? In this trial? Besides you just want to block it out of your memory?
A. I guess I was just scared.
Q. What were you scared of?
A. Just a lot of things.
Q. Could you be specific?
A. Well mainly I guess, the Defendant.
Q. And who is that?
A. Teresa Carlisle.

It is obvious the witness did not desire to testify another time in the murder trial and that she had consciously tried to block the memory of the incident out of her mind. Obviously she was not successful in blocking the facts out of her mind because she testified in detail about the homicide. The record shows that the transcripts of the former trials were available in the courtroom and we feel certain if her testimony varied in any respect such variance would have been pointed out to us by defense counsel. No variance has been shown.

Although the witness was on the Methadone treatment for withdrawal from drugs, she had been gainfully employed for three years, was nearing the end of the Methadone treatment, and was free of drugs. We hold the witness was competent and the judge did not abuse his discretion in handling this very delicate situation during the trial.

In her third assignment of error, defendant claimed she did not receive a fair and impartial trial and stated in her brief the following:

Appellant believes that if ever given the chance to have a simple straight forward presentation of facts at a trial, the jury will acquit her. Appellant requests that this Honorable Court give her that chance and reverse and remand this cause for a new trial.

A review of the entire record reveals that defendant was afforded the opportunity to present her defense. In this assignment of error she again claims she was denied the right of a speedy trial and that the confusion attending the refusal of the witness Long to testify when called to the stand for the first two times in some manner kept her from receiving a fair and impartial trial.

We are of the opinion that defendant did receive a fair and impartial trial. She has been found guilty by three different juries. Finding no reversible error, we affirm.

AFFIRMED.

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

      . Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.