author: HAWKINS, Justice,

text:
    Lamar CLARK v. STATE of Mississippi.
    No. 52999.
    Supreme Court of Mississippi.
    Feb. 17, 1982.

      Richard W. Hamilton, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C. J., and HAWKINS and DAN M. LEE, JJ.
   HAWKINS, Justice,

for the Court:

Lamar Clark was indicted by the grand jury of Jackson County on October 5, 1979, along with Joseph Kuljis, Jr., Suzanne Bar-aboo and eight others of conspiracy to possess a controlled substance with intent to deliver.

He was tried alone on December 11, 1980, convicted, and sentenced to serve a term of five years in the Department of Corrections and fined $5,000.00. We reverse.

The record reveals seizure of approximately 22 tons of marijuana in Pascagoula, following which eleven individuals were indicted. There was ample evidence to support the verdict of the jury; indeed, there was no assignment of error based upon insufficiency of the evidence, and no purpose would be served in detailing the factual background.

It was reversible error for the circuit judge to admit certain instruments written in Spanish into evidence without their being first translated, and their materiality as well as competency determined.

The State offered these documents into evidence through Richard Humphreys, an agent for the Mississippi Bureau of Narcotics, over the objection of the defendant. The defendant further objected when Hum-phreys, who could not speak Spanish, testified to the English translation of some of the words, which a high school Spanish teacher had previously interpreted for him. Based on this translation, Humphreys concluded, as an expert, that the words were an “elaborate code system . . ., obviously a well kept record of what appeared to me to be a well organized smuggling group or smuggling operation . . .. ”

Of these several instruments written in Spanish, almost all the words would be completely unintelligible to a juror unless he was fluent in Spanish. We do not know if the State or defense voir dired the jury on their ability to read Spanish, but presumably, they did not. We must conclude that the jury did not understand, as this Court does not understand, the meaning of the vast majority of the words on these writings. Not only were they admitted into evidence without giving the jury any idea of the meaning of most of the words thereon, but the State was also permitted to invidiously characterize them as against the defendant.

We believe materiality was shown in the documents which contained the name of the defendant; however, the other papers would be material only after a proper showing that they were relevant evidence pertaining to the illegal conspiracy and smuggling, or possession or sale of marijuana.

Prerequisite to the admission into evidence of any written instrument are materiality and competency. As to any document written in a foreign language, it was first incumbent upon the prosecution to have a knowledgeable person translate the meaning of the words into English. The jury should not have been left to conjecture as to the meaning of almost all the words thereon. 32 C.J.S. Evidence § 679, states:

Instruments written in a foreign language may be admitted into evidence in connection with a showing of their meaning in English, but are not admissible without a translation into English, at least where the party offering the instrument has had an opportunity to have a translation made.

After translation, the trial court must examine the documents and their translation to determine whether they are innocuous and irrelevant, or material. If irrelevant, they should be excluded. If material, and the words after translation need no further explanation by an expert, they should be submitted to the jury. If an expert is required to show the true purpose and intent of the documents, a duly qualified expert may do so.

It is improper to permit a witness to testify to the meaning of words or statements, however, unless they have some unusual or technical meaning peculiar to a certain trade, operation or business. Mississippi Power Co. v. Leggett, 197 So.2d 475, 479 (Miss.1967); Smith v. State, 99 Miss. 859, 879, 56 So. 179, 183 (1911); 31 Am.Jur.2d Expert and Opinion Evidence § 171.

Not having the benefit of the translation, this Court cannot pass upon the necessity of an expert to give the true purpose and intent of these instruments after the translation into English. We leave this for the trial judge’s determination upon remand. Excellent examples of the need for further delineation of words peculiar to an illegal operation are in two Florida cases, Slater v. State, 356 So.2d 69 (Fla.Dist.Ct.App.1978), and Llerandi v. Blackburn, 97 So.2d 247 (Fla.1957).

In Slater the defendant was convicted of a conspiracy to sell or deliver cocaine, and complained of the police officer giving the meaning of certain words contained in intercepted conversations. The Florida District Court of Appeal, First District, responded as follows:

By his fifth point appellant contends that the trial judge committed reversible error when permitting a police officer, over the objection of the defendant, to be qualified as an expert witness regarding street language in the drug culture and permitting the officer to explain to the jury his interpretation of words used by the alleged conspirators in intercepted conversations, the tapes of which were played to the jury. During those conversations the speakers used the terms “C”; “white girl”; “lady”; “snow”; “party pack”; “rock and roll”; “boy”; “white boy”; “doogee”; “kattie” and the expression “three, but I know a duece smoking.” The words were used in contexts wherein their normal lexicographical meanings would be illogical and meaningless. They would make no sense at all to the average juror. We find no error.

356 So.2d at 71.

In Llerandi a police officer, testifying as an expert, was permitted to identify certain slips of paper as lottery tickets. The Florida Supreme Court held this proper, after the state had shown that the officer had investigated 180 lottery cases, questioned numerous persons involved in lotteries, and had participated in Cuban lotteries as an undercover agent for the police department.

Aside from what we have already stated, it was further error for the circuit judge to permit agent Humphreys to give his opinion of the purpose and intent of these documents based in part upon their translation by a third party, since this translation was not within his own knowledge and not in evidence. Spears v. State, 241 So.2d 148 (Miss.1970); Wild v. Bass, 252 Miss. 615, 173 So.2d 647 (1965).

The defendant also argues that the circuit judge improperly excluded from evidence three written memoranda on the letterhead of “H & D Seafood”, indicating that Clark had worked for this firm on May 8, 1979, July 8, 1979, and August 20, 1980. Only one of the dates is material, July 8, 1979, a date when the co-defendant Kuljis testified that Clark would have been on the boat used in smuggling the marijuana. All three of the memoranda could be material, however, in showing Clark did occasionally perform labor for this firm, working on boats.

Hudson Larry Murray testified that he was president of H & D Seafood, and that his firm bought shrimp and fish, and had five boats. He knew Clark, who had been selling to him off and on for eight or nine years, had helped him rig boats and had done other occasional work for his business. He testified that the three memoranda were “paid tickets for labor” made in the usual course of business, and, in his opinion, written by his partner of three years. The memoranda were kept for record keeping either in Gulfport or with the firm’s bookkeeper in Laurel. Although these documents were admissible, in any event, the state informed the court it did not object to them as violative of the hearsay rule, but because they were not “authenticated”. Upon remand the trial judge must determine the materiality of the tickets dated May 8, 1979, and August 20, 1980, but sufficient predicate was laid as to the competency of each.

As is apparent in our holding in King v. State, ex rel. Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969), this Court has adopted the modern and more liberal rule in the admission into evidence of written instruments concerning business transactions, including computer printouts.

32 C.J.S. Evidence § 625 in speaking to this question, states:

Where there is adequate proof of the execution and identity of the document offered it may, in an otherwise proper case, be admitted. As to the sufficiency of the proof of the execution of a document, the rule has been laid down that the party offering it is only required to make out a prima facie ease to render it admissible.

It is further stated in § 740:

Where a written instrument is not attested by any subscribing witnesses, it is nevertheless admissible, although other evidence of execution or authenticity must be resorted to. In such a ease, any competent proof may be used to prove the instrument. It may be proved ... by the testimony of any one familiar with his handwriting ....

As stated, upon remand the trial judge must determine the materiality of the two tickets dated May 8, 1979, and August 20, 1980, but there was sufficient foundation laid to render them all competent. See also State, ex rel. Patterson v. Sims, 253 Miss. 458, 176 So.2d 261 (1965). Their credibility will be for the jury to weigh and consider.

Clark next assigns as error the refusal of the trial judge to disqualify the district attorney and his entire staff from prosecuting the case because of an alleged professional conflict of interest involving Louis Guirola, assistant prosecutor.

Following their indictment, Joseph Kuljis, Jr., and Suzanne Baraboo retained the legal services of Boyce Holleman, at which time Mr. Guirola was associated with the firm. Mr. Guirola prepared and filed discovery and severance motions on behalf of these defendants. Thereafter, he terminated his legal association with Mr. Holleman and was employed by the district attorney as assistant prosecutor. For reasons not shown in this record, the legal services of the Holleman firm were discontinued and Joseph Kuljis, Jr., and Suzanne Baraboo employed Oscar B. Ladner to represent them. On August 7, 1980, Mr. Ladner presented a motion for the district attorney to recuse himself because Mr. Guirola was assistant prosecutor at that time, and a professional conflict of interest existed. Clark’s counsel, Richard W. Hamilton, also filed a motion for the district attorney and his entire staff to be removed from prosecuting the case, assigning the same supporting reason therefor as Kuljis and Baraboo.

The trial court overruled the motions filed on behalf of the defendants Kuljis and Baraboo, as well as Clark.

The motion Mr. Ladner made that a conflict of professional interest involving Mr. Guirola and his client existed was manifestly well taken in August, 1980. We are not confronted with that position here, however. Clark was never represented or questioned by Guirola or the Holleman firm as attorneys for Kuljis and Baraboo. We do not even have a question of Mr. Guirola representing Kuljis and Baraboo at the time they pled guilty. Another attorney represented them in that plea. There was clearly no professional conflict of interest which would prejudice Clark.

The other assignment of. error is the refusal of circuit Judge Maples to re-cuse himself. This case understandably excited public interest and caused considerable media comment.

Six of Clark’s co-defendants pleaded guilty before another circuit judge in May, 1980, and were sentenced to prison terms and fined $20,000 each.

During this period some county officials and citizens saw in this case an opportunity to help finance the county, while others became concerned with what they perceived as a guilty person buying his freedom from the penitentiary.

Judge Maples met with some county officials at a luncheon a few days before these six co-defendants pleaded guilty, at which time the idea of this quick financing was broached, and immediately opposed by the district attorney (also in attendance) if the county officials had these particular six defendants in mind. The circuit judge agreed with the district attorney. As stated, Judge Maples had nothing to do with the trial or guilty pleas of these six co-defendants.

After the luncheon meeting with the county officials, Judge Maples held an audience for some 15 ministers, who presented him with a petition asking for strict law enforcement and prison sentences for all major drug offenders.

These facts or factors reveal no prejudice against the defendant in allowing Judge Maples to hear this case in December, 1980.

Since this case is being remanded for a new trial, and since this is not a single-judge district, we do in deference to Judge Maples suggest that another trial judge hear the case. In making this suggestion we do not mean to imply the judges of this state, especially trial judges, should seclude themselves from the public.

Trial judges have the duty of complete impartiality in the trial of any case, and responsibility to maintain complete independence and integrity in hearing and deciding any case. This does not mean they cannot be in attendance at a meeting of public officials, or give an audience to any one or more groups of citizens.

Of course, if a judge learns beforehand that the purpose of some meeting would compromise the independence of his judicial conduct, he should not attend. Likewise, we do not doubt practically every judge has had occasion to remind people who seek their audience that they cannot discuss any pending case.

If this government is to remain democratic, judges must have the independence to decide each case on its merits to the very best of their minds, hearts and conscience. The striving for this goal by any judge is not impeded, however, by courteously listening to citizens not seeking to influence his judicial decisions. A good judge is capable of quickly correcting any improper suggestion or erroneous impression of the judicial function.

These comments are not meant to be didactic. The trial judges of this state are in no need of instruction by this Court as to their duties or responsibilities.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: BOWLING, Justice,

license: Public Domain

text:
    James Allen WILLIAMS, by and Through His Mother and Next Friend, Maggie Williams v. STATE of Mississippi.
    No. 53092.
    Supreme Court of Mississippi.
    Feb. 17, 1982.
    Blackmon, Smith & Nichols, Edward Blackmon, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROY NOBLE LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant James Allen Williams was denied his petition for a writ of habeas corpus by the Circuit Court of Yazoo County. He appeals from that denial. We affirm.

In March 1980 appellant plead guilty to a charge of selling marijuana. He was sentenced by the Circuit Court to a term of ten years with the Department of Corrections. The entire sentence was suspended and appellant placed on probation for three years. On July 22, 1980, appellant was arrested again for the alleged sale of marijuana. On petition by the district attorney, a hearing requesting revocation of the suspended sentence and probation was held on August 20, 1980. After the hearing the circuit court granted the petition and revoked the suspended sentence and probation. Appellant was ordered to begin serving the sentence.

On December 4, 1980, appellant filed his petition for writ of habeas corpus contending that his constitutional rights were violated for the reason that at the revocation hearing the public was barred from the courtroom. It is admitted that the reason for this action by the trial judge was that the principal witness was an undercover agent, who was still working in the area; that divulging his identity would be a threat to him personally and would serve to diminish his effectiveness. Appellant contends first that the public should have been admitted to the hearing completely under appellant’s constitutional rights. Secondly, it is contended that the public, including members of appellant’s family, should have been permitted at the hearing at all times other than during the testimony of the undercover agent.

Appellant contends that the closed hearing denied his rights under Article III, Section 26, Mississippi Constitution (1890), and Amendment VI to the United States Constitution. A reading of those instruments shows that they clearly apply to “criminal prosecutions.” The question then is primarily whether or not a revocation hearing comes within that term. Clearly, it does not. This statement is borne out by all authorities.

This Court in the case of Gardner v. Collier, 274 So.2d 662 (Miss.1973), quoted the United States Supreme Court in its opinion in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and said the following:

We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Cf., Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.

Morrissey, supra, further said:

Our task is limited to deciding the minimum requirements of due process. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (e) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact-finders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the court said:

Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one. Probation revocation, like parole revocation, is not a stage of criminal prosecution, but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer, supra.

We stop here to say that at the hearing on the petition for writ of habeas corpus, neither party introduced any of the proceedings conducted at the revocation hearing. There were some vague stipulations which were sufficient to verify that the allegation of a closed hearing was correct and that the reason for the closed hearing as stated by the lower court was correct. It is important to note that at the revocation hearing, appellant was represented by an attorney whose reputation and competence is not questioned. There is nothing in this record to show definite objection and the reasons therefor made at the revocation hearing. Also, the testimony of the attorneys in the habeas corpus hearing reflect that a request was made for the hearing to be open to the public, primarily to the members of appellant’s family. We, therefore, are proceeding under the assumption that the revocation hearing was closed to the public and objection thereto was made and overruled.

The principle before us was ably stated by the district court in United States v. Hollien, 105 F.Supp. 987 (W.D.Mich., 1952), and it is stated:

The defendant stands convicted in the United States District Court for the Northern District of Indiana, and probation was granted him as a privilege and not as a matter of right. The bench warrant issued by this court for probation violation can be served at any time during his probationary period, and upon a proper hearing and satisfactory proof of such violation, the court can revoke his probation and require him to serve the sentence which was imposed for the offense of which he was convicted. The hearing on the charge of probation violation is in the nature of a summary proceeding and is not a “criminal prosecution” entitling defendant to a “speedy and public trial” under the Sixth Amendment of the Constitution. See Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266; Escoe v. Zerbst, Warden, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566.

We hold that the appellant’s constitutional rights under either the United States or Mississippi Constitutions were not violated when the public was excluded from the hearing on the petition to revoke appellant’s suspended sentence and probation. This was in the nature of an administrative summary proceeding growing out of a privilege that was granted appellant by the lower court when the suspended sentence and probation was granted. As stated in Mor-rissey, supra, the hearing was not a part of a criminal prosecution and thus, the full panoply of right due a defendant in a criminal prosecution under the requirements of the Constitutions does not apply to suspension and parole revocations.

AFFIRMED.

SMITH, and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE and HAWKINS, JJ., concur.

PATTERSON, C.J., and DAN M. LEE, J., took no part.


author: ROY NOBLE LEE, Justice,

text:
    Frank WADE v. Thomas O. BONNER, Jr. and Thomas O. Bonner, Sr.
    No. 53016.
    Supreme Court of Mississippi.
    Feb. 17, 1982.

      Roberts & Easterling, M. M. Roberts, Hattiesburg, R. K. Houston, Jr., Bay Springs, for appellant.
    John M. Sims, Heidelberg, Bailey, Trusty & Cook, Collins Bailey, Batesville, Watkins & Eager, Velia Ann Mayer, James A. Becker, Jr., Jackson, for appellees.
    Before SMITH, ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Thomas O. Bonner, Jr. and Thomas O. Bonner, Sr. filed separate suits in the Circuit Court of the Second Judicial District of Jasper County, Honorable L. D. Pittman, presiding, against Sanderson Farms, Inc. and Frank Wade, seeking damages for personal injuries and property resulting from an automobile collision. The cases were consolidated for trial and the jury returned a verdict in the sum of $650,000 in favor of Thomas O. Bonner, Sr., being the full amount sued for, and $2000 in favor of Thomas O. Bonner, Jr. The lower court ordered a remittitur of $400,000 in the Thomas O. Bonner, Sr. case, which was accepted, and entered judgment for him in the sum of $250,000 and reformed the verdict for Thomas O. Bonner, Jr. in the amount of $1,982.15 and entered judgment therefor. At the conclusion of the plaintiffs’ cases, the lower court directed a verdict in favor of Sanderson Farms, Inc. and discharged that party. Frank Wade has appealed, assigning seven errors in the trial below, and Thomas O. Bonner, Sr. has cross-appealed as to the remittitur.

We consider (1) whether or not the lower court erred in refusing a peremptory instruction for the appellant and (2) whether or not the judgment entered is excessive.

Frank Wade was employed by Sanderson Farms, Inc. to assemble, transport and supervise workers employed in catching, loading and transporting chickens from various poultry farms to the Sanderson plant for processing. This operation took place during the nighttime. Wade used a carryall van made available to him by Sanderson for the exclusive purpose of transporting the crew to and from the farms and poultry plant. He was given specific instructions to use the vehicle for no other purpose.

Wade completed his usual work on the night of March 2, 1978, drove the van home and went to sleep. He awakened about 11:00 a. m. on March 3, 1978, drove the van into town, bought a fifth of whiskey and met one Eugene Yates at a cafe around 3:30 in the afternoon. They completed drinking the bottle of whiskey, left the establishment, and bought another fifth of whiskey on the way to Wade’s home. After they had eaten, Wade’s neighbor, Willie Millsaps, asked Wade to drive him to his disabled car, parked about seven miles away. Thereupon, Wade, Yates and Mill-saps left together in the Sanderson van and Wade let Millsaps out near the disabled automobile.

Late in the afternoon of the same day, the Bonners, both owning pickup trucks, had driven them to the home of a Mrs. McGill to deliver a refrigerator which she had purchased from them. They drove north on the Paulding-Heidelberg Road, a two-lane blacktop highway, which runs generally north and south. As they approached the McGill driveway, Bonner, Jr. parked his truck on the shoulder of the road just south of same, and turned on the emergency flashing lights. He then got into the back of his father’s truck and held the refrigerator steady as Bonner, Sr. backed the truck up the driveway into the yard of Mrs. McGill. They unloaded the refrigerator, plugged it in, and proceeded to leave in the Bonner, Sr. pickup truck. Bonner, Sr. drove to the end of the McGill driveway, stopped, looked both ways for oncoming traffic and, seeing none approaching, he drove onto the highway into the southbound lane and proceeded south to a point opposite the Bonner, Jr. truck. He stopped the vehicle briefly and Bonner, Jr. got out of the truck onto the shoulder of the highway.

At about this time, Wade, driving the Sanderson van in a southerly direction in the southbound lane of the Paulding-Hei-delberg Road, came over a hill north of the McGill driveway and the Bonner pickup trucks. From this point forward the evidence is in sharp conflict as to how the accident occurred. The Bonners’ evidence is to the effect that Bonner, Sr. had started driving his pickup truck south and had proceeded eighty-five feet from the Bonner, Jr. truck when the van came over the hill at a rapid rate of speed (one witness testified seventy miles per hour), struck the Bonner, Jr. vehicle on the east shoulder, glanced off it and struck the Bonner, Sr. truck which was moving south in the southbound lane, turning it over and pinning Bonner, Sr. thereunder.

Wade’s evidence indicated that the van came over the hill at a reasonable rate of speed, the Bonner vehicles were blocking the highway, Wade attempted to go between the two vehicles and, since there was not enough room to execute the maneuver, he collided with both vehicles.

Under the conflicting evidence, a question was presented for the jury on liability, and, in considering the evidence in the light most favorable to the plaintiffs, disregarding any evidence on the part of defendant in conflict with that, together with the reasonable inferences drawn therefrom, we are of the opinion that the jury verdict is supported by the evidence on the question of liability. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975). Therefore, the lower court correctly refused the peremptory instruction requested by Wade.

Bonner, Sr. was seriously injured in the collision. He was pinned under his truck for a period of time, lying on his back in the ditch, with gasoline running into the ditch and over his shoulders and back. He was admitted to the hospital and after his release, had severe chest pains, sweating and nausea. Subsequently, Bonner, Sr. suffered a heart attack and a heart catheterization was performed on him, followed by coronary bypass surgery. Bonner, Sr. sustained considerable pain after the accident as a result of the heart attack and the surgery undertaken for that condition. He was fifty-seven years of age at the time of the accident and is now permanently incapacitated. He sustained medical bills in excess of $20,000, and loss of a yearly income from $10,000 to $12,000. The extent of his injuries and his physical condition were supported by medical evidence.

In our opinion, the final judgment for Bonner, Sr. in the sum of $250,000 is not excessive, nor do we think that the lower court abused its discretion in entering the remittitur of $400,000. Walton v. Scott, 365 So.2d 630 (Miss.1978); Dorris v. Carr, 330 So.2d 872 (Miss.1976).

We have carefully examined the other assignments of error and are of the opinion that there is no merit in them. Therefore, the judgment of the lower court is affirmed on direct and cross-appeals.

AFFIRMED.

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

PATTERSON, C. J., took no part.


text:
    Terry Mathews BLOODWORTH v. Kathy Leigh BLOODWORTH.
    No. 53033.
    Supreme Court of Mississippi.
    Feb. 17, 1982.
    Taylor & Whitwell, Ronald L. Taylor, Charles W. Broun, III, Jim M. .Greenlee, Southaven, for appellant.
    Kathy Leigh Bloodworth, pro se.
    Before SMITH, ROY NOBLE LEE, and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Terry Mathews Bloodworth has appealed from a decree of the Chancery Court of DeSoto County, Honorable L. E. Hanna-ford, Sr., presiding, which granted custody of two minor children to the DeSoto County Department of Welfare and ordered Blood-worth to pay $400 each month to the director of the welfare department for the children’s support. Their mother, Kathy Leigh Bloodworth, has not filed briefs and has not cross-appealed. She did make a pro se appearance and participated in the oral argument before this Court.

The appellant assigned three errors in the trial below, which may be consolidated into the one question of whether or not the lower court erred in holding that appellant was an unsuitable parent to have custody of the children and in awarding their custody to the DeSoto County Department of Welfare.

The parties were married January 14, 1972, and have two children, Thomas Scott Bloodworth, born November 13, 1972, and Leigh Ann Bloodworth, born August 15, 1978. Appellant filed suit for divorce against appellee and, after a full hearing, the chancellor entered a decree on September 3,1980, divorcing the parties. The lower court held that appellee “is morally unfit at this time to have the care, custody and control of the minor children of the parties” and that appellant “is not a proper, fit and suitable person to have the paramount custody of the minor children of the parties at this time, even though he was not proven morally unfit to have their paramount care, custody and control.” The lower court then held that the best interests of the minor children would be served by divesting custody from both parents and granting custody to the Director of the DeSoto County Department of Welfare. Appellant was ordered to pay $400 per month to the Director of the DeSoto County Department of Welfare for the children’s support, and visitation rights were granted to the parents.

In Thomas v. Purvis, 384 So.2d 610 (Miss.1980), quoting from Rodgers v. Rodgers, 274 So.2d 671 (Miss.1973), the Court said:

“[I]t is presumed that the best interest of the child will be preserved by it remaining with its parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. ... ” 274 So.2d at 673.

(384 So.2d at 612)

After carefully reviewing the evidence, we think that detailing same would not be helpful. We are of the opinion that the chancellor, where no moral unfitness was found against appellant, was manifestly in error when he held that appellant was not a proper, fit and suitable person to have the paramount .custody of the children at that time. While the appellee was found by the chancellor to be unfit to have the custody of the children, it was made known to the court upon oral argument that appellee has had custody of the children for months and that appellant has exercised visitation rights with the children. Appellee has married again, and counsel for appellant conceded to the Court in oral argument that both parents are now fit and suitable persons to have custody of the children.

The paramount concern of the Court is the best interest of the children. Morris v. Morris, 245 So.2d 22 (Miss.1971), and see Thomas v. Purvis, supra. Therefore, we reverse the judgment of the lower court and remand the case for an additional hearing on questions of custody and support, and for a determination as to what should be done in the best interest of the children. The evidence may include matters relating to a change of circumstances surrounding the parties since the entry of the September 3, 1980, decree in the lower court.

REVERSED AND REMANDED.

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

PATTERSON, C. J., took no part.

      . The DeSoto County Department of Welfare never received custody of the children.

      . Parental rights of the parties also must be considered.


author: WALKER, Justice,

text:
    Jewel HICKOMBOTTOM v. STATE of Mississippi.
    No. 53025.
    Supreme Court of Mississippi.
    Feb. 17, 1982.

      Thomas M. McNeely, Natchez, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, WALKER and HAWKINS, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from the Circuit Court of Adams County wherein the defendant, Jewel Hickombottom was convicted of rape and sentenced to serve a term of forty years in the Mississippi Department of Corrections. Feeling aggrieved, Hickombottom perfects this appeal.

The appellant makes the following assignments of error:

I.

THE COURT ERRED IN OVERRULING APPELLANT’S MOTION TO QUASH THE INDICTMENT

There is no merit to this assignment of error because the indictment tracks Mississippi Code Annotated section 97-3-65 (Supp.1981) which deals with the crime of rape.

We have said on numerous occasions that where the indictment tracks the language of a criminal statute that it is sufficient to inform an accused of the charge against him. State v. Labella, 232 So.2d 354 (Miss.1970); Anthony v. State, 349 So.2d 1066 (Miss.1977). In Culberson v. State, 379 So.2d 499 (Miss.1979), this Court stated:

The language of the indictment was sufficient to apprise Culberson of the . . . charge against him, thereby enabling him to prepare a defense to it, if any he had.

Mississippi now has a sexual battery statute, Mississippi Code Annotated section 97-3-95 (Supp.1981) which is a less severe offense than forcible rape and provides for a lesser penalty upon conviction.

The sexual battery statute, by its own terms, provides that it does not repeal or otherwise amend any existing statute.

The appellant argues that the sexual battery statute is so vague that it violates his constitutional guarantee of due process. However, it is not necessary for us to determine the validity of this argument since the appellant was indicted for and convicted of the crime of rape under section 97-3-65 (Supp.1981) and not sexual battery.

II.

THE LOWER COURT ERRED IN OVERRULING THE APPELLANT’S MOTION TO EXCLUDE OUT-OF-COURT AND IN-COURT IDENTIFICATION TESTIMONY AND FOR MISTRIAL.

There is no merit to this assignment of error. The trial court conducted a hearing outside the presence of the jury and made the following ruling:

Let the record show that Defendant’s motion to exclude this testimony will be overruled, and his motion for mistrial based upon the witness having previously identified this Defendant now in front of the jury will be overruled for the reason that the Court is satisfied that the identification of the Defendant is based upon her original impression, there being no showing whatsoever that her identification has been tainted.

We have carefully examined the record with regard to the victim’s identification of the appellant and are of the opinion that the trial court was eminently correct in its finding and that there is no substantial possibility of misidentification of the appellant. Considering the totality of the circumstances, the victim’s identification of the appellant withstands the test under the criteria laid down in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

III.

THE LOWER COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR A DIRECTED VERDICT.

This assignment of error is without merit. There was more than ample evidence upon which the jury could find that the victim submitted because of “fear arising out of a reasonable apprehension of great bodily harm,” under the rule of Fields v. State, 293 So.2d 430, 432 (Miss.1974), and Rush v. State, 301 So.2d 297 (Miss.1974). There was also abundant evidence to justify the jury in finding that the appellant was the person who committed forcible rape on the victim.

IV.

THE LOWER COURT ERRED IN GIVING STATE INSTRUCTIONS S-2 AND S-5, CONTRARY TO LAW AND WHEREIN THE JURY WAS CONFUSED AND MISLED. DEFENDANT’S INSTRUCTION NO. D-5 SHOULD HAVE BEEN GIVEN.

In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Knight v. State, 57 So.2d 161 (Miss.1952), and Norman v. State, 385 So.2d 1298 (Miss.1980). We have carefully considered all of the instructions and are of the opinion that the jury was amply and fairly instructed as to the law with reference to the crime of rape and that the appellant was not denied any instruction to which he was entitled. The jury was given several alternatives as to their verdict, one of which was “If you find the Defendant guilty of rape, but are unable to fix the penalty, the form of your verdict may read: ‘We, the Jury, find the defendant guilty, but are unable to fix the penalty.’ ” After deliberating for approximately two hours, the jury chose not to fix the penalty of the defendant at life imprisonment, nor to find him guilty of the offense of sexual battery, but followed the instruction with regard to finding him guilty of rape and returned the following verdict in the exact words of the instruction dealing with rape: “We, the Jury, find the defendant guilty, but are unable to fix the penalty.”

It is therefore evident that the jury was not confused in any way by the court’s instructions.

V.

THE LOWER COURT ERRED IN REFUSING TO SET ASIDE THE VERDICT OF THE JURY AND JUDGMENT PURSUANT THERETO AND ORDER A NEW TRIAL.

There is no merit to this assignment of error and it warrants no discussion.

VI.

THE LOWER COURT ERRED IN OVERRULING THE APPELLANT’S MOTION FOR REDUCTION OF SENTENCE.

Section 97-3-65 dealing with forcible rape places the imposition of a life sentence within the sole province of the jury, and unless the court has the authority from the jury, no such sentence can be-imposed by the trial judge. A trial judge may not impose a sentence of life under section 97-3-65 when the jury has failed to do so. The statute presupposes, absent a jury recommendation of life imprisonment, that the judge will sentence the defendant to a definite term reasonably expected to be less than life. Lee v. State, 322 So.2d 751 (Miss.1975).

The appellant contends that his sentence of forty years in the Mississippi Department of Corrections is the equivalent of a life sentence, whether served without probation or when probation becomes a factor.

At the time of trial, the appellant was either 22 or 23 years of age and it is presumed that he was in good health since there was no evidence to the contrary. If he served the full forty years, he would be approximately 63 years of age at that time. This is substantially less than his reasonable life expectancy.

Finding no merit to the appellant’s assignments of error, the judgment and sentence imposed by the trial court are affirmed.

AFFIRMED.

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


author: PER CURIAM. EMBRY, Justice

text:
    FINANCE, INVESTMENT AND REDISCOUNT COMPANY, a corp. v. William WELLS and Cecil Patterson.
    79-285.
    Supreme Court of Alabama.
    Aug. 7, 1981.
    On Rehearing Feb. 26, 1982.
    George C. Hawkins, Gadsden, and Harvey Elrod of Hutson & Elrod, Decatur, for appellant.
    J. Wilson Dinsmore and Fred Blanton, Birmingham, for appellees.
   PER CURIAM.

This is an appeal from an $80,000.00 jury verdict rendered in a shareholder’s derivative action from the Circuit Court of Eto-wah County in favor of William Wells and Cecil Patterson in their capacity as minority shareholders of Forrest Discount Company, Inc. (Forrest), and against Finance, Investment and Rediscount Company (F, I and R), the majority shareholder and foreclosing creditor of Forrest. We reverse and remand as to the equitable issues tried before the jury. Shareholder derivative actions are equitable in nature. Plaintiffs are not entitled to a trial before a jury of equitable issues. The verdict is affirmed on the legal issue raised by F, I and R in its counterclaim, and on the legal count asserted by the plaintiffs in their individual shareholder capacity that were tried to the jury.

Wells and Patterson, plaintiffs below, are minority shareholders of Forrest, which is a consumer financing company. F, I and R, defendant below, is the 51% majority shareholder and major creditor of Forrest. F, I and R is a wholesale finance company, lending money to consumer finance companies. In 1967, F, I and R became Forrest’s major creditor when it repaid Forrest’s debt to Finance Company of America, and when it promised to supply Forrest with a continuing source of funds enabling Forrest to operate its business. In exchange, Forrest and F, I and R entered into a continuing security agreement, dated January 11,1967, under which F, I and R received a security interest in all of Forrest’s personal property and assets, including the customer accounts. Among other things, the agreement stated that any default uncured for 60 days converted the agreement into an assignment to F, I and R of all outstanding shares of Forrest stock, giving F, I and R the exclusive right to vote the stock in electing members of the board of directors.

By 1969, Forrest had defaulted under the 1967 agreement, and in lieu of foreclosure and the consequent formal assignment to F, I and R of Forrest’s stock, F, I and R, Forrest, Wells, Patterson and Clifford Reavis negotiated an agreement, dated January 7, 1969, enabling Forrest to stay in operation. In essence, the 1969 agreement provided that Forrest could retain $10,-000.00 from its collections to be used for reinvesting, and it could also keep an amount necessary to pay its operating expenses which included the sum of $1,100.00 per month to be paid to F, I and R as interest on the existing indebtedness. The balance of Forrest’s collections was to be remitted to F, I and R where it was to be applied to reduce Forrest’s debt to F, I and R. The agreement also confirmed all existing agreements and contracts as between Forrest and F, I and R.

Clifford Reavis was the sole shareholder of Forrest’s total 100 shares of outstanding stock. In accordance with the terms of the 1969 agreement, he surrendered his 100 shares, and delivered 51 shares to F, I and R, gave 10 shares each to Wells and Patterson, and retained 29 shares for himself. Later that year, Wells purchased Reavis’s 29 shares by delivering to him a $1,000.00 note plus a $5,000.00 check which he borrowed for that purpose from F, I and R. Consequently, F, I and R was the majority shareholder and Wells and Patterson were the remaining minority shareholders. Two F, I and R principals were elected to the board of directors of Forrest, as were Wells and Patterson. Wells and Patterson were also salaried employees of Forrest, entrusted with the daily management and operation of the company.

Finally, in 1971, F, I and R foreclosed on Forrest’s indebtedness under the security agreement, and created a conduit corporation through which all of Forrest’s pre-ex-isting customers could pay on their accounts. The events in 1971 constituting the fact, method and timing of the foreclosure — allegedly in violation of the 1969 agreement — form the bases for Wells and Patterson’s complaint.

As the minority shareholders of Forrest, Wells and Patterson filed a stockholder’s derivative action alleging that F, I and R and its principals: (1) criminally, willfully, wantonly, fraudulently, negligently and with reckless disregard mismanaged, and permitted mismanagement of, Forrest Discount Company, Inc.; (2) breached its fiduciary duty owed to the plaintiffs; (3) misappropriated corporate funds and assets; (4) diverted Forrest’s corporate opportunities; and (5) converted customer accounts and money. They also included a count for $100,000.00 on a $25,750.00 promissory note allegedly executed and delivered to Patterson by Forrest which Forrest was unable to repay because the defendants fraudulently and illegally converted Forrest’s assets. F, I and R counterclaimed for the $5,000.00 it loaned Wells enabling him to purchase Reavis’s 29 shares of Forrest stock.

The plaintiffs demanded a jury trial, and the defendants filed a motion for an order striking the jury demand on the equitable counts, or otherwise, severing the non-jury claims and limiting the issues to be tried before the jury. On the trial day, moments before the jury was struck, a hearing was held in the judge’s chambers on the pretrial motions. The judge overruled the motion to strike the jury demand, and plaintiffs took the conversion count out of the case. The jury returned an $80,000.00 verdict against F, I and R on the derivative claims and against plaintiffs on the promissory note claim. F, I and R was awarded $5,504.51 on its counterclaim on the loan.

In addition to several other issues, F, I and R asserts on appeal that this case is due to be reversed and remanded because it was improperly tried before a jury. We agree. Rule 23.1, A.R.C.P., allowing a derivative action on the part of one or more shareholders, does not specify whether this cause of action is to be tried before a jury. Therefore, we must consult our state constitution to determine whether there is such a right in derivative action cases. See Rule 38, A.R.C.P.

Ala.Const. of 1901, art. I, § 11 states “That the right of trial by jury shall remain inviolate.” Our case law interprets this section to mean that a jury trial is preserved only with respect to those cases which would have been triable by jury at common law. Ex parte W & H Mach. & Tool Co., 291 Ala. 517, 283 So.2d 173 (1973); Shelton v. Shelton, 376 So.2d 740 (Ala.Civ.App.1979). At common law, purely legal claims were guaranteed the right to a jury trial. Tillery v. Commercial Nat’l. Bank, 241 Ala. 653, 2 So.2d 125 (1941). If the claims were equitable, there was no constitutional right to a trial by jury. Pugh v. Calloway, 295 Ala. 139, 325 So.2d 135 (1976).

The shareholder derivative action is an equitable cause of action. 6 Cavitch, Business Organizations, § 119.01[1]. Being an action in equity, this case would not have been tried before a jury at common law. The trial judge erred in submitting to the jury the derivative claims, denominated in this opinion as (1) through (4), because they are all claims asserted by the shareholders on behalf of the corporation for wrongs allegedly committed against the corporation. 6 Cavitch, Business Organizations, § 119.03[3].

Nevertheless, the claim on Patterson’s promissory note was properly tried before the jury because it was a purely legal count asserted by plaintiffs in their individual capacity and was not an issue raised derivatively on behalf of the corporation. To the extent that this was a legal claim, triable by jury at common law, the right to a jury trial is preserved. Likewise, the counterclaim raised by F, I and R on the $5,000.00 note executed to Wells was a legal, rather than an equitable, cause of action, triable by jury.

Our scope of review on the merits of these legal claims is to view the evidence in the light most favorable to the prevailing party. Cooper v. Peturis, 384 So.2d 1087 (Ala.1980). There is a presumption in favor of the correctness of a jury verdict, and this presumption is strengthened by the trial court’s overruling a motion for new trial. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979). Accordingly, we will not disturb the jury’s decision on a fact question unless it is plainly erroneous or manifestly unjust. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979).

F, I and R’s judgment in the amount of $3,574.36 in damages plus $1,930.15 interest on its counterclaim will be allowed to stand. The jury verdict disallowing Patterson’s claim on his junior promissory note, likewise, will be allowed to stand. The terms of the junior note expressly provide that repayment is after any and all presently outstanding, or additional, indebtedness whether secured or unsecured. The term junior was defined to mean that the indebtedness evidenced by the note shall be entitled to payment only after there shall be paid in full all principal and interest due on such superior indebtedness. There was credible evidence that there were other debts owed by Forrest.

Notwithstanding the merger of law and equity in civil cases, the right to a jury trial is preserved only where plaintiff was so entitled at common law unless expressly granted by statute. Thus, it is not uncommon for us to hold, as in this case, that the court without a jury shall try the equitable claims (unless the jury is advisory only), and a jury, if demanded, shall try the legal claims when both are pleaded in the same action. Poston v. Gaddis, 335 So.2d 165 (Ala.Civ.App.), cert. denied, 335 So.2d 169 (Ala.1979). Accordingly, the judgments on the legal claims are affirmed, and the judgment is reversed and remanded on the shareholder derivative equitable claims.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

TORBERT, C. J., and FAULKNER, EM-BRY, BEATTY and ADAMS, JJ., concur.

On Application for Rehearing

During pendency of the application for rehearing in this cause, our attention was called to the U. S. Supreme Court case of Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970), a case not previously cited in briefs of counsel. Ross holds that the right of trial by jury preserved by the 7th Amendment to the U. S. Constitution extends to a stockholder’s derivative suit with respect to issues not unlike the triable issues in the instant case. Upon reconsideration, we believe Section 11 of our State Constitution mandates a holding consistent with Ross.

That holding is consistent with Cumens v. Garrett, 294 Ala. 535, 319 So.2d 665 (1975), and Crommelin v. Fain, 403 So.2d 177 (Ala.1981), upholding jury trial rights in cases having a blend of legal and equitable claims pursuant to Rule 38, A.R.C.P. See, also, Hoffman, Alabama’s Right to Trial by Jury Since the Merger of Law and Equity, 32 Ala.L.Rev. 436 (1981). Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), and Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), also support this result in their application of the comparable federal rule, Rule 38, F.R.C.P.

Issues presented on appeal which were pretermitted — because of our original holding favorable to appellants on the right of trial by jury issue — have now been considered. As to the weight and sufficiency of the evidence issue, our restudy of the briefs of counsel and our painstaking review of the evidence of record fail to disclose any basis for overriding the presumption of correctness attending the trial court’s order overruling defendant’s motion for a new trial.

As to the excessiveness of the verdict issue, however, we find that the highest verdict sustainable by the evidence is $50,-000.00. Consequently, our affirmance is conditioned upon the appellees’ filing, with the Clerk of this Court, within 21 days from the date of this opinion, a remittitur in the amount of $30,000.00. Otherwise, the judgment will be reversed and the cause remanded for a new trial.

Application for rehearing is granted; the judgment below is due to be affirmed conditionally.

APPLICATION FOR REHEARING GRANTED; AFFIRMED CONDITIONALLY.

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

ALMON and EMBRY, JJ., dissent.

EMBRY, Justice

(dissenting):

I respectfully dissent from the majority opinion on rehearing.

At the outset, it should be noted that the Seventh Amendment to the United States Constitution, which serves as the basis of the decision in Ross v. Bernhard, is not applicable to the states. As we observed in U-Haul Company of Alabama v. State, 294 Ala. 330, 316 So.2d 685 (1975):

“ * * * the Seventh Amendment * * * applies only to the courts of the United States. * * * The ‘due process’ clause of the Fifth Amendment does not require jury trial in the federal courts; and cor-relatively the ‘due process’ clause of the Fourteenth Amendment does not require it in the state courts. * * * ” 5 Moore’s Federal Practice, ¶ 38.08[5], pp. 77, 78; Minneapolis & St. Louis Railroad Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961; Iowa Central Railway Co. v. Iowa, 160 U.S. 389, 16 S.Ct. 344, 40 L.Ed. 467; Hardware Dealers’ Mutual Fire Ins. Co. of Wisconsin v. Glidden Co., 284 U.S. 151, 52 S.Ct. 69, 76 L.Ed. 214.

Thus, it is only as persuasive authority that the majority relies upon Ross v. Bernhard in concluding that Section 11 of the Alabama Constitution mandates the right to trial by jury in this shareholder’s derivative action.

I am not convinced that the rationale of Ross v. Bernhard warrants the weight given it by the majority, or that it can be reconciled with the consistent and clear view expressed, until today, in the Alabama cases which have construed Section 11.

Of particular note is W & H Machine & Tool Co. v. National Distillers and Chemical Corp., 291 Ala. 517, 283 So.2d 173 (1973), an action in assumpsit commenced at law to recover money damages for unpaid debts incurred by a company that was allegedly the alter ego of the defendant, another company. Recognizing that the plaintiff might recover only under an “instrumentality theory,” the trial court transferred the case from the law division to the equity division and denied trial by jury.

On appeal, this court acknowledged that “trial by jury is the real issue in contention between the parties.” Looking to Const. 1901, § 11, and the cases construing that provision, this court stated:

Article 1, § 11 of the Alabama Constitution of 1901 is a source of the right to jury trial in this state. That section provides: “That the right of trial by jury shall remain inviolate.” * * *.
This provision has been interpreted to provide for jury trial in those classes of cases in which the right existed at common law, or in which it was used at the time of the adoption of the Constitution. Alford v. State, 170 Ala. 178, 188, 54 So. 213, 215 (1911). This embraces all purely legal rights and contentions which were known to the common law and which had no element of equitable cognizance in their composition and in which a trial by jury existed. Tillery v. Commercial National Bank, 241 Ala. 653, 4 So.2d 125 (1941); Montgomery & Florida Ry. v. McKenzie, 85 Ala. 546, 549, 5 So. 322 (1888).
Section 11, supra, however, in no way enlarges the right of jury trial. It does not extend to cases where jury trial was not available as of right prior to the Constitution. State v. Bley, 162 Ala. 239, 50 So. 263 (1909). Nor does it extend to causes totally unknown to the common law or to the statutory law as it existed at the time of the adoption of the Constitution. In re One Chevrolet Automobile, Senior v. State, 205 Ala. 337, 87 So. 592 (1921); Tims v. State, 26 Ala. 165 (1855).

This court then proceeded to analyze the case history of the instrumentality theory in Alabama and, after determining the theory was cognizable only in equity, denied plaintiff’s petition for writ of mandamus.

Although the majority in the case sub judice as well as the majority in Ross v. Bernhard freely admit that a shareholder’s action was cognizable only in equity and not at common law, the position taken by the majority in Ross v. Bernhard, and presumably by the majority here, is that historical analysis of a particular cause of action as legal or equitable has been necessary simply because of “[pjurely procedural impediments” in the dual system which have been removed by the merger of law and equity under the Federal Rules of Civil Procedure. (That argument is applicable to the instant case because the Alabama Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure. See, Committee Comments, ARCP, Rule 1.)

The fallacy of that contention was aptly identified in Justice Stewart’s dissenting opinion in Ross v. Bernhard, joined by Chief Justice Burger and Justice Harlan, as follows:

[A]s we have seen, a derivative suit has always been conceived of as a single, unitary, equitable cause of action. It is for this reason, and not because of “procedural impediments,” that the courts of equity did not transfer derivative suits to the law side. In short, the cause of action is wholly a creature of equity. And whatever else can be said of Beacon Theatres and Dairy Queen, they did not cast aside altogether the historic division between equity and law.
If history is to be so cavalierly dismissed, the derivative suit can, of course, be artificially broken down into separable elements. But so then can any traditionally equitable cause of action, and the logic of the Court’s position would lead to the virtual elimination of all equity jurisdiction. * * *.

“[C]ourts of equity did more than simply afford the shareholder entrance to the judicial system; they created a right which they carefully guarded throughout the entire litigation.” Note, Jury Trial in a Stockholders’ Derivative Suit, 65 Nw.U.L. Rev. at 701 (Sept. — Oct. 1979). Thus, treatment of an action as peculiarly and unitarily equitable is not simply a matter of deference to historical form, but involves substantive considerations such as the practical limitations and abilities of a jury to comprehend the issues and make the necessary decisions in certain types of complex corporate litigation. See, Note, Ross v. Bernhard: The Uncertain Future of the Seventh Amendment, 81 Yale L.J. 112 (Nov. 1971). Indeed, the majority in Ross v. Bernhard recognized the “practical abilities and limitations of juries” as one of the factors to be considered in determining the “legal” nature of an issue, but mentioned it only by way of footnote (396 U.S. at 538, n. 10, 90 S.Ct. at 738, n. 10), conveniently failing to include this factor in its substantive analysis.

Also, not to be overlooked are more practical considerations such as the effect of increasing the number of far-more time consuming trials by jury in the face of a growing backlog of cases in the courts, a step which very likely would substantially retard the pace of justice. See, Ross v. Bernhard: The Uncertain Future of the Seventh Amendment, supra.

For the reasons stated, I would hold in accordance with W & H Machine & Tool Co. v. National Distillers and Chemical Corp., supra, and the line of cases cited therein, and grant the right to trial by jury only in actions recognized at common law. Although W & H Machine & Tool Co. was decided under premerger rules, subsequent cases decided under the Alabama Rules of Civil Procedure have reaffirmed the rule enunciated therein. Pugh v. Calloway, 295 Ala. 139, 325 So.2d 135 (1976); Shelton v. Shelton, 376 So.2d 740 (Ala.Civ.App.1979). I remain unconvinced that this rule, carefully wrought by precedent and tested by time, should be so casually abandoned today.

ALMON, J., concurs.


author: PER CURIAM. MADDOX, JONES and ADAMS, Justices

text:
    In the Matter of Edward HORSLEY v. STATE of Alabama.
    78-87.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Nicholas S. Hare, Jr., and W. J. Causey, Jr., Monroeville and Jack Drake, University, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Supreme Court of the United States, on June 30, 1980, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133, issued the following mandate in this cause:

ON WRIT OF CERTIORARI to the Supreme Court of Alabama.
THIS CAUSE having been submitted on the petition for writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said Supreme Court [374 So.2d 375] in this cause is vacated, and that this cause is remanded to the Supreme Court of Alabama for further consideration in light of Beck v. Alabama, 447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392] (1980).

Therefore, pursuant to the mandate of the Supreme Court of the United States, this case is remanded to the Court of Criminal Appeals for consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and this Court’s decisions in Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, 403 So.2d 154 (Ala.1981); and Reed v. State, on rehearing, 407 So.2d 162 (Ala.1981).

REMANDED WITH DIRECTIONS.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, Ala.Cr .App., 409 So.2d 1347.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala.1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala.1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2386 (footnote 7) 65 L.Ed.2d 392 (1980).


author: PER CURIAM.

text:
    Edward HORSLEY v. STATE.
    1 Div. 931
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied Jan. 29, 1982. Alabama Supreme Court 81-216.
   PER CURIAM.

REVERSED AND REMANDED ON AUTHORITY OF Beck v. State, 396 So.2d 645 (Ala.1980). NO OPINION.

All the Judges concur.

[Opinion originally published at 374 So.2d 363; affirmed, 375 So.2d 375.]


author: JONES, Justice. MADDOX, Justice

text:
    CITY OF HUNTSVILLE, et al. v. Johnny M. SMARTT, et al.
    80-302, 80-509.
    Supreme Court of Alabama.
    Feb. 5, 1982.

      Charles H. Younger and Walter A. Record, III, Asst. City Atty., Huntsville, for appellant City of Huntsville.
    Phillip B. Price, Huntsville for appellants Walter Moseley and James Barkley.
    George M. Beason, Jr., of Martinson & Beason, Huntsville, for appellees.
   JONES, Justice.

These are consolidated appeals by the City of Huntsville and certain named City officials (City) from both a preliminary order and a final decree enjoining the promotion of a City of Huntsville Fire Department employee to the rank of District Fire Chief. The circuit court based its order on a finding that, “advancement bypassing” had occurred as a result of the procedure utilized in making the employee’s appointment.

We reverse.

For the information and protection of the City’s employees, an “Employee Handbook” was compiled and distributed. A portion of the handbook outlines the procedure by which promotion through the fire department takes place:

“Three very important factors are considered in the promotional procedure for the fire profession. One is to devise a system that will insure the most qualified and deserving candidate(s) be selected, to insure the system is fair and impartial, and that all employees be made thoroughly familiar with it in order to eliminate misunderstandings. The following procedure is adopted toward these goals:
Qualifications
“The minimum qualifications hereafter stated will apply to all candidates who are eligible for promotion within the Huntsville Fire Department.... It is important that the candidates(s) selected have the skills, knowledge, abilities and personal characteristics that are necessary as a prerequisite to perform the required duties of the newly acquired job classification.
“A. Each promotional candidate must be a member of the City of Huntsville Fire Department ranking classifications.
“B. Each candidate must be in good standing having no disciplinary action during the twelve month period preceding the date of the examination. Disciplinary action is defined as written reprimands, suspensions without any pay, demotion, and disciplinary probation when due to the grounds of action as listed in the handbook.
“C. Each candidate must possess an overall satisfactory performance evaluation on the last official rating prior to the date of examination.
“D. Each candidate for promotion must make application for promotional examination to the Director of Personnel according to the directions stated on the examination announcement. The proper application forms for examinations will be available for completion at the Personnel Department, Third Floor, Municipal Building.”

Although the applicants for all fire department positions are required to complete these standardized steps in order to qualify for the position sought, the fire chief has the discretionary authority to appoint qualified persons to positions above the classification of captain.

Additionally, the handbook provides the procedure for bringing employment grievances, including an appeals procedure:

“Section 7: PERSONNEL COMMITTEE AND APPEALS PROCEDURE.
“Appeals Procedure
“A grievance may exist when an employee does not agree with the following actions:
“(a) Advancement bypassing
“(b) Job classification
“(c) Assignment changes
“(d) Unsafe working conditions
“(e) Discrimination on the basis of race, age, sex, religion or national origin.
“Step 1: The employee shall file his grievance to his department head who shall have five (5) working days from the receipt of the written grievance to investigate, review, and prepare a written answer to the grievance. No employee will be coerced, restrained, or discriminated against for presenting a grievance.
“Step 2: If the employee is dissatisfied with the answer received from the department head, he has five (5) working days within which to appeal to the Personnel Committee, which must give their answer within ten (10) working days from receipt of the written grievance. The decision of the Personnel Committee must be concurred in by the Mayor.
“Step 3: If an employee is dissatisfied with the answer received from the Personnel Committee and concurred in by the Mayor, he shall have a right to appeal to the City Council. The employee shall file written notice with the Director of Public and Employee Relations within five (5) working days indicating his decision to appeal to the City Council. The City Council will schedule a hearing. All employees have the right to be represented by himself or whomever he chooses. The decision of the City Council is the final decision.
“The employee initially files the grievance with the department head but he is also responsible for notifying all immediate supervisors that he is filing said grievance.”

Walter Moseley, the Huntsville Fire Chief, advertised an opening for the position of District Fire Chief, which advertisement set out prerequisites to be met by the applicant in order to be considered for the position. These prerequisites were in addition to those overall requirements found in the handbook and were developed by Chief Moseley for this particular position.

The additional criteria required that the applicant 1) be a captain with three years of experience, and 2) have served for a period of time in the training division under Chief Moseley’s supervision. The advertisement explained that the training division would “be used for training of future district chiefs for upgrading the training of the fire department.”

In the exercise of his appointive authority, and using these criteria, on January 6, 1981, Chief Moseley named James Barkley to the position of District Fire Chief, effective January 12, 1981. On January 7, 1981, Appellees, all twenty-two of whom are captains with the Huntsville Fire Department (Employees), instituted both a grievance procedure with the City of Huntsville and a civil suit for injunctive relief with the Circuit Court of Madison County. Employees claimed that Chief Moseley, in establishing the additional prerequisites, had effectively precluded all captains of the Huntsville Fire Department except James Barkley and another man who chose not to apply for the position. Employees further alleged that Barkley had been promoted, not on the basis of experience or training, but because of his close personal relationship with Chief Moseley; i.e., “advancement bypassing” had occurred.

Employees, in their petition for injunc-tive relief filed with the circuit court, acknowledged the City’s personnel grievance procedure and declared that grievances in regard to this matter had been filed with the proper City of Huntsville department head. They went on to state, however, that the final decision in a case proceeding under the City’s grievance procedure is made by the city council and that the appeals process in reaching the council could take months; therefore, Employees reasoned:

“[Ujnless the [City is] restrained and enjoined, until the [Employees’] grievances can be heard, from filling the District Chief vacancy with the Defendant, James Barkley, the [Employees] and others will suffer immediate and irreparable injury, loss and damage. There appears to be no authority for removing an employee from a position with the City of Huntsville Fire Department once he has assumed the duties of said position.
“The Court’s issuance of a restraining order and an injunction will maintain the status quo until the [Employees’] grievances have been heard by the proper authority with the City of Huntsville.
“WHEREFORE, [Employees] pray that the [City] be temporarily restrained, preliminarily enjoined, and permanently enjoined, from filling the vacancy of District Chief for the City of Huntsville Fire Department with James Barkley and/or from allowing James Barkley to assume the duties of District Fire Chief, ... until the [Employees’] grievances concerning said matter have been decided by the proper authorities with the City of Huntsville, Alabama.”

The circuit court issued a temporary restraining order on January 7, 1981, which forbade “... the filling of the vacancy of District Chief with James Barkley even though the promotion had already occurred.” At a January 25,1981, hearing for preliminary injunction, the circuit court found that the City of Huntsville’s “Employee Handbook” did not contain a definition of “advancement bypassing,” the ground upon which Employees based their claim. The Court, however, defined “advancement bypassing” as:

“[T]he promotion of a less qualified employee over one or more qualified competitors on the basis of personal or other considerations which are not relevant to the providing of the best services to the citizenry.”

The circuit court found that 1) its duty was to determine whether there was probable cause to believe that “advancement bypassing” had occurred and could be the basis of a legitimate grievance under the City of Huntsville’s procedures and 2) the grievance procedure adopted by the City of Huntsville was the proper method for determining whether “advancement bypassing” had, in fact, occurred. The circuit court was careful to add that its order, granting the preliminary injunction, was in no way an assessment of James Barkley’s qualifications but was injunctive relief designed to allow Employees to proceed with their grievances.

Employees’ grievances were ultimately appealed to the city council. The council issued its decision on March 6, 1981, stating that the council found that bypassing had occurred, although no definition of “advancement bypassing” appeared in the handbook. The council further stated that the City was not empowered to remove an employee without “cause” and, therefore, the promotion of James Barkley would stand as made.

On April 28,1981, the minutes of the city council were entered into evidence in a hearing before the circuit court, and on April 30, 1981, the circuit court entered its final judgment. The court’s order stated that bypassing had occurred and that James Barkley must be removed from the position of District Chief. Furthermore, the court ordered that the notice advertising for applicants to fill the position must set out requirements drawn so as not to permit bypassing to re-occur. Again, however, the circuit court affirmatively stated that its order in no way prejudiced James Barkley’s right to apply or reflected upon Barkley’s qualifications for the position.

These appeals followed. In its appeal from the preliminary injunction, the City contends that the circuit court erred in that it determined the rights of the parties before all available administrative remedies had been exhausted. We find this argument to be without merit.

Alabama has adopted the “doctrine of exhaustion of administrative remedies.” This doctrine “requires that where a controversy is to be initially determined by an administrative body, the courts will decline relief until those remedies have been explored and, in most instances, exhausted.” Fraternal Order of Police, Strawberry Lodge v. Entrekin, 294 Ala. 201, 209, 314 So.2d 663, 670 (1975). Entrekin approved the “exhaustion of administrative remedies” doctrine found in United States v. Western Pacific Railroad Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), which applies “where a claim is cognizable in the first instance by an administrative agency alone.” By that doctrine “judicial interference is withheld until the administrative process has run its course.... ” Entrekin, at 210, 314 So.2d 663.

The hearing of this case on its merits before the circuit court was not held and the final judgment was not rendered until the Employees had taken their grievances through the entire City appeals procedure. The circuit court’s interlocutory decree specifically found that the substantive issues of whether favoritism had been shown and whether the resultant “advancement bypassing” had occurred were for the City to determine. Furthermore, the court held that the “proper vehicle for determination of those issues is the grievance procedure outlined by the City,” and ordered that “all grievances filed by the Employees regarding any charge of advancement bypassing arising out of the promotion of James Barkley to district chief be treated as one joint case and be decided by the authorities of the City of Huntsville.” By granting the preliminary injunctive relief, the circuit court was merely preserving the status quo and permitting the grievance procedure to go forward as prescribed in the “Employee Handbook.”

The City next urges that the circuit court erred when it interfered with the City’s broad discretion in determining and applying its employee selection process. With this contention we agree.

The law in Alabama has consistently been that the decision of a governmental agency, when made within the scope of the agency’s authority, will not be enjoined unless the decision was made arbitrarily, capriciously, in bad faith, or as a part of a fraud. See Alidor v. Mobile County Commission, 291 Ala. 552, 284 So.2d 257 (1973); and Brammer v. Housing Authority of the Birmingham District, 239 Ala. 280, 195 So. 256 (1940).

The Court of Civil Appeals, in Hughes v. Jefferson County Board of Education, 370 So.2d 1034 (Ala.Civ.App.1979), enunciated the standard against which to test an administrative agency’s action in determining whether there has been arbitrariness, capriciousness, bad faith, or fraud:

“A determination by an administrative agency is not ‘arbitrary’ or ‘unreasonable’ where there is a reasonable justification for its decision or where its determination is founded upon adequate principles or fixed standards. State Department of Pensions and Security v. Whitney, 259 So.2d 810 (Ala.Civ.App.1978).
“If reasonable minds may well be divided as to the wisdom of administrative board’s actions, or there appears some reasonable basis for the classification made by the board, such action is conclusive and the court will not substitute its judgment for that of the administrative body.”

Our review of the record convinces us that, when measured against the Hughes standard, neither Chief Moseley’s selection process nor the city council’s ultimate decision was arbitrary, capricious, in bad faith, or fraudulent. Indeed, the “reasonable basis” spoken of in Hughes, supra, is clearly met in Chief Moseley’s stated purpose to develop additional criteria for the selection of the district fire chief — that is, the upgrading of the fire department personnel as a whole.

In deference to the Employees’ emphasis upon the city council’s characterization of Chief Moseley’s action as “advancement bypassing,” we acknowledge that this tends to lend some credence to the trial court’s final decree. The Employees’ contention is premised upon the supposition that the “advancement bypassing” proscription applicable to the promotional procedures through the classification of captain is equally applicable to the promotion of a district fire chief. Therefore, insist the Employees, given the “advancement bypassing” finding by the city council, the trial court merely accepted this finding and enforced its mandate. The problem with this conclusion lies in the error of its premise. Indeed, the term, “advancement bypassing,” through its maltreatment and misapplication, has infested this case throughout. We do not here attempt to define the term; but, whatever its definition, “advancement bypassing” is an inappropriate characterization, where, as here, the fire chief selected the appointee from among candidates of equal rank, utilizing the prerequisites as prescribed by the City personnel director and supplemented by Chief Moseley.

We further acknowledge that the city council’s reference to its not being empowered to remove an employee without “cause” is misplaced, because the issue before the council, in the grievance proceedings, was the validity of the promotional process and not its authority to remove the appointee from office. Here again, however, this inappropriate language does not render erroneous the council’s ultimate conclusion that the delegation of discretionary employment authority rests in the fire chief.

Having concluded that the evidence of record discloses no evidentiary basis for a finding that the fire chief’s exercise of his discretionary employment authority is tainted by “arbitrariness, capriciousness, bad faith, or fraud,” we hold, therefore, that the order of the circuit court permanently enjoining the promotion of James Barkley to the position of District Fire Chief exceeded the permissible boundaries of judicial review of administrative decisions.

As to the appeal from the judgment in case 80-302 (temporary injunction):

AFFIRMED.

All the Justices concur.

As to the appeal from the judgment in case 80-509 (permanent injunction):

REVERSED AND RENDERED.

TORBERT, C. J., and SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX, FAULKNER and ALMON, JJ., dissent.

MADDOX, Justice

(dissenting).

I agree with the majority’s opinion that the administrative remedies had been exhausted in this case and, therefore, I concur that the circuit court had jurisdiction of the case. I respectfully dissent, however, from that portion of the decision which holds that the circuit court erred in finding “advancement bypassing” had resulted from the employment procedure used.

Even though the fire chief had the discretion to appoint qualified persons to positions above the rank of captain, this discretion was not unreviewable; it was reviewable by the city council.

On review, the city council concluded that the fire chief’s action was improper under the city’s personnel procedures, but further concluded that the council had no authority to remove the appointee Barkley.

The circuit court, after reviewing the administrative action, stated in its order:

“[T]hat discretion should be ... exercised in an unfettered way so long as the objective prerequisites for the decisions bear relationship to the duties sought to be performed.”

The city council had determined that the memorandum from Fire Chief Moseley outlining his new requirements for filling the vacancy of district chief effectively eliminated more than twenty captains on the basis that to be eligible, one must have served in a special training division under him. Only two captains met Moseley’s criteria, and one of them did not apply for the vacancy.

While the city council’s finding of “bypassing” may seem to be improper, the construction of the personnel rules by the administrative department charged with its administration is entitled to weight. 18 Ala. Dig. Statutes, Key No. 219.

Plaintiff’s grievances were properly taken to the city council, in accordance with the procedure contained in the “Employee Handbook.” The city council made a finding that “bypassing” did occur. After examining all the evidence, the circuit court concurred in the finding by the city council that “bypassing” had occurred. The circuit court pointed out that the city council felt unauthorized to take the remedial step of removing Mr. Barkley. Addressing this legal issue, the court stated:

“This court, exercising equity jurisdiction, is not so limited.”

I concur in the circuit court’s treatment of the problem and would affirm.

The order of the circuit court to remove Mr. Barkley from his new position in order to provide for selection procedures to be adopted which would comport with the spirit of the city’s personnel system, in my opinion, was within the power of the court, especially its equity jurisdiction, to review the administrative action complained of. The circuit court emphasized the narrow scope of its decision and that by no means was the decision to be construed as an opinion of Mr. Barkley’s experience, qualifications, or fitness for the job.

It is apparent to me that the findings of fact by both the city council and the circuit court should be upheld by this Court in view of the statements in the circuit court’s order and the evidence supporting the findings and decisions of both tribunals. Consequently, I must dissent from the majority on this aspect of the appeal.

FAULKNER and ALMON, JJ., concur.

      . Assuming, without deciding, that the trial court incorrectly defined “advancement bypassing,” we do not agree that the trial court’s interlocutory order “rendered ineffective” the City’s grievance procedure. Moreover, our af-firmance of the temporary injunction order is not to be construed as embracing the trial court’s finding or rationale; it only means that the exercise of its discretion to temporarily “freeze” the status of the parties, under the instant circumstances, will not be disturbed on appeal.