text:
    Alan M. MITCHELL, Plaintiff-Appellee, v. Doyle WINDHAM, et al., Defendants-Appellants.
    No. 82-531.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.

      Stafford, Stewart & Potter, Larry Stewart, Alexandria, for defendants-appellants.
    J.P. Mauffray, Jr., Jena, for plaintiff-ap-pellee.
    Before STOKER, YELYERTON and KNOLL, JJ.
   YELVERTON, Judge.

Following a trial by jury and a verdict for the defendants, the trial judge granted a motion for a new trial on behalf of plaintiff. At the same hearing when the motion for new trial was granted, the court proceeded immediately to direct a verdict in favor of plaintiff as to liability, then set a date for a new trial as to quantum alone. The defendants appealed from the judgment directing a verdict as to liability. We annul and set aside the directed verdict, and remand the case for a new trial as ordered by the district court.

The procedural history which brings this case before us began when Alan M. Mitchell filed a suit against Doyle Windham, former Sheriff of LaSalle Parish, and his insurer, North River Insurance Company, based on illegal arrest and false imprisonment. The case arose out of an alleged illegal arrest by the authorities in LaSalle Parish based on a fugitive warrant out of Oklahoma, followed by an alleged detention beyond 72 hours without a hearing. Both sides prayed for a jury. After one mistrial, the case was tried by a jury. The result was a verdict for defendants.

On the same day that the jury verdict was rendered, March 25, 1982, the district court signed a judgment in favor of defendants dismissing plaintiffs suit. Plaintiff immediately filed a written motion praying that a new trial be granted, and that a directed verdict or summary judgment be granted in plaintiff’s favor as to the issue of liability. The court ordered defendants to show cause on April 26,1982, why a new trial should not be granted and why judgment should not be directed in favor of Alan Mitchell and against the defendants.

These rules were heard on the assigned date, and the trial court immediately signed the judgment, dated April 26, 1982, granting a new trial. This judgment further ordered, adjudged and decreed “that there be judgment directed herein in favor of Alan M. Mitchell ... on the issue of liability.” The judgment closed by setting a date for trial on the issue of quantum.

Defendants recognize that they have no appeal from the granting of a new trial. Their appeal is from the directed verdict finding them liable. Defendants urge us to annul and set aside the directed verdict, which we are going to do for the reasons about to be given. Defendants then request of us, after we have set aside and annulled the directed verdict, to decide rather than remand the case, since the entire record of the jury trial is before us. This we cannot do, for reasons which we will also hereafter explain.

Nullity of the Directed Verdict

The plaintiff’s post-judgment motion for a new trial included a motion for “a directed verdict or summary judgment” as to liability. The court granted a new trial, then directed a verdict finding defendants liable. The trial court had authority in its discretion to grant a new trial, but it did not have the authority to grant either a directed verdict or summary judgment in that procedural setting, for several reasons.

A directed verdict is designed for use during trial and not as a post-judgment remedy. Weber v. Bon Marche Pharmacy, Inc., 378 So.2d 520 (La.App. 4th Cir.1979), writ denied 381 So.2d 1220 (La.1980). If the action taken by the trial court is treated as a summary judgment (as appellee calls it on appeal), it was unauthorized for the same reason: the motion for a summary judgment is not a post-judgment remedy. It must be tried and disposed of before trial. Joseph v. Tri Parish Flying Service, Inc., 201 So.2d 321 (La.App. 3rd Cir.1967); Frank v. Great American Insurance Co., 196 So.2d 50 (La.App. 3rd Cir.1967), writ denied, 250 La. 739, 199 So.2d 180 (1967).

Additionally, LSA-C.C.P. art. 1977 provides:

“Art. 1977. When a new trial is granted, it shall be assigned for hearing in accordance with the rules and practice of the court.”

This procedural rule, dating back to the Code of Practice of 1870, Article 563, has been consistently applied to mean that when a trial court grants a new trial or a rehearing, which amounts to a setting aside of the former judgment, it cannot proceed immediately to render another and different judgment. The case must again be set for trial or hearing, because the only question presented for decision on a rule for a new trial or rehearing is whether the same shall be granted or refused and nothing more. State ex rel. Shreveport Cotton Oil Company v. Blackman, Judge, 110 La. 266, 34 So. 438 (La.1903); Jacobs v. Lagrange, 9 La.App. 409, 119 So. 538 (La.App. 1st Cir. 1929); Loomis v. Connecticut General Life Ins. Co., 160 So.2d 270 (La.App. 4th Cir. 1964); and Pickering v. Hibernia National Bank, 306 So.2d 469 (La.App. 4th Cir.1975).

Thus, the only question before the court was whether a new trial should be granted or refused, and nothing more. It was error for the court to have set aside its former judgment based on a jury verdict (by the grant of a new trial) and to have proceeded at once to render another and a different judgment.

For these reasons the directed verdict must be annulled and set aside.

Remand

Appellants urge us not to remand but to decide the case on the merits, pointing out that the entire record of the jury trial is before us and citing La.C.C.P. art. 2164 and Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

The record of the jury trial is in our hands, but the status of the case on the trial level is that a new trial is pending. Gonzales v. Xerox Corporation, supra, does not apply in this situation because we do not have a final judgment of the trial court on appeal before us. The original judgment of the trial court was set aside and vacated when a new trial was granted. Carrier Leasing Corp. v. Ready-Mix Cos., Inc., 372 So.2d 601 (La.App. 4th Cir.1979). For us to decide this case on the merits would require us, in effect, to set aside the trial court’s granting of a new trial, reinstate the original judgment based on the jury verdict, and treat the entire case as an appeal from the original judgment on behalf of the plaintiff rather than defendants.

The instant case is to be distinguished from Riddle v. Menard, 355 So.2d 1350 (La. App. 3rd Cir.1978) and Kaplan v. Missouri-Pacific Railroad Company, 409 So.2d 298 (La.App. 3rd Cir.1981). In both those cases the trial courts refused to grant a new trial although they stated on the record that the judgment was wrong and should be corrected. This circuit took those cases and decided them, because there was an appealable judgment before us, the record was before us, and the question of a new trial was moot at that point. The instant case is different, of course, because a new trial has been granted, and we are powerless to intervene.

The judgment of the district court appealed from is annulled and set aside in all respects save as to the part thereof which granted the new trial, and the ease is remanded for the purpose of conducting the new trial and for further proceedings according to law, not inconsistent with the views herein expressed; costs of this appeal to be borne by appellee. All other costs are to await final determination of the case.

Judgment annulled and set aside in part, and cause remanded.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    HERB’S MACHINE SHOP, INC., Plaintiff-Appellee, v. The JOHN MECOM COMPANY, Defendant-Appellant.
    No. 82-537.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    Writs Denied April 5, 1983.
    Camp, Carmouche, Palmer, Barsh & Hunter, Wade Kelly, Lake Charles, for defendant-appellant.
    McHale, Bufkin & Dees, Robert McHale, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   FORET, Judge.

This suit entitled a “Petition on Open Account” was filed by Herb’s Machine Shop, Inc., seeking to collect monies allegedly owed by The John Mecom Company, to plaintiff. The alleged indebtedness arose from transactions wherein plaintiff, at the request of defendant’s agent, remodeled and reconditioned old machine parts and, on some occasions, manufactured new parts for machinery belonging to the defendant.

Plaintiff made demand upon defendant for payment of the amount alleged to be due without avail, and on November 20, 1981, plaintiff, through its attorney, placed defendant on notice that suit would be filed if payment was not forthcoming. Notice was again sent to defendant by plaintiff’s attorney on December 10, 1981, without result. Suit was then filed on February 23, 1982, and defendant filed answer on March 29, 1982. Once issue was joined, the court set a trial date of May 24,1982, and sent all counsel a pre-trial order setting a cut-off date of May 3, 1982 for discovery and the filing of incidental demands.

Counsel for defendant obtained an oral extension of the deadline date until May 6, 1982, upon representing to the court that additional time was needed to complete discovery. Counsel for plaintiff argues that the three-day extension applied only to discovery and counsel for defendant argues that the extension applied both to discovery and to the filing of incidental demands.

Defendant filed a reconventional demand on May 6, 1982, and counsel for plaintiff objected to its filing as being untimely. Defendant, on May 21, 1982 (three days before the scheduled trial), filed a motion for continuance on the grounds that they were unable to contact and obtain material witnesses since they were in the State of Texas and were not amenable to service and subpoena by the trial court. Plaintiff then filed a motion to sever the reconven-tional demand on May 24, 1982, the day of the trial.

The trial court heard argument on the motion for continuance and the motion to sever and denied defendant’s motion for continuance and ordered that defendant’s reconventional demand be severed from the main demand and dismissed it without prejudice.

Trial commenced as scheduled, and the court granted judgment in favor of plaintiff as prayed for and, in addition, awarded plaintiff attorney’s fees in the amount of $1,050.00, together with interest thereon from date of judicial demand.

From this adverse judgment, defendant has appealed.

ISSUES

The issues presented for resolution are the following:

(1) Did the trial court err in severing defendant’s reconventional demand from the trial on the main demand and dismissing defendant’s reconven-tional demand?
(2) Did the trial court err in denying defendant’s motion for continuance?
(3) Is this suit properly one on open account, thereby allowing plaintiff attorney’s fees?

SEVERANCE

By pre-trial order, the court set the delays for the filing of incidental demands at May 3,1982. An oral extension of the date was granted defendant until May 6, 1982. Controversy arises as to whether the extended deadline date was for both the filing of incidental demands and for discovery. Counsel for defendant argues that the extension applied to both, and counsel for plaintiff argues that the extension applied only to discovery.

Defendant filed a reconventional demand on May 6, 1982, without obtaining leave of court, and counsel for plaintiff was served with it on May 11, 1982. The plaintiff, defendant-in-reconvention, would thereby have had at least until May 26, 1982, in which to file answer to the reconventional demand. The trial of the matter was set for May 24,1982; thus, it was possible that the trial date could have come and gone with issue yet to be joined on the reconven-tional demand.

Plaintiff objected to the filing as being both untimely and without leave of court, and the court ordered defendant’s reconven-tional demand dismissed without prejudice and ordered it stricken from the record.

Article 1038 of the Louisiana Code of Civil Procedure provides, in pertinent part, the following:

“Art. 1038. Separate trial; separate judgment
The court may order the separate trial of the principal and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.” (Emphasis ours.)

The trial judge can order separate trials and render separate judgments on the principal and the incidental demands, if it appears that orderly procedure and fairness would best be achieved by separate trials. LSA-C.C.P. Article 1038; Viera v. Kwik Home Services, Inc., 266 So.2d 732 (La.App. 4 Cir.1972), writ refused, 268 So.2d 258 (La.1972). The trial judge may also order separate trials of the principal and incidental demands in an effort to avoid unnecessary delay. Lowentritt v. Lowentritt, 370 So.2d 157 (La.App. 3 Cir.1979).

Additionally, LSA-C.C.P. Article 1033 provides, in part, the following:

“Art. 1033. Delay for filing incidental demand
An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.
An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Article 1066 or 1092.” (Emphasis ours.)

From a reading of the above article, it is clear that unless otherwise permitted, an incidental demand may be filed after answer only upon the fulfillment of two conditions: Leave of court is first obtained, and the filing will not retard the progress of the principal action. In this instance, defendant failed to obtain leave of court to file its reconventional demand. Thus, it has failed to meet the first requirement. Inasmuch as the delays for answering the recon-ventional demand would not have run until after the scheduled trial date, the trial could have had to be continued. Defendant therefore failed to meet the second condition as well.

We see no abuse of discretion on the part of the trial court in severing the reconven-tional demand. The court dismissed it without prejudice as not being properly filed. Since the reconventional demand was improperly filed, the trial court acted well within its power, insuring that the proceedings before it were conducted orderly and without unnecessary delay.

CONTINUANCE

Defendant, three days prior to the May 24, 1982, trial date, filed a motion for continuance on the following grounds:

a. Issue was not properly joined since the reconventional demand had been filed on May 6,1982, served on plaintiff, defendant-in-reconvention, on May 11, 1982, thereby giving plaintiff, defendant-in-reconvention, until May 26, 1982 (two days after the scheduled trial), to answer;
b. Defendant was unable, with the exercise of due diligence, to contact and obtain material witnesses, in that they reside in the State of Texas and are not amenable to subpoena by this Court; that the witnesses could not attend on that particular week and because they would have to travel long distances to be present at the trial.

These two grounds will be treated separately:

a. Since we have heretofore found ourselves in agreement with the action of the trial court, in that the defendant’s re-conventional demand was improperly filed, defendant’s motion for continuance on the grounds enumerated in sub-heading (a) are without merit.

b. Article 1062 of the Louisiana Code of Civil Procedure provides as follows:

“Art. 1602. Peremptory grounds
A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance. As amended Acts 1966, No. 186, § 1.”

Once the grounds above listed are demonstrated to the court, the granting of a continuance is mandatory. McCaleb v. Department of Public Safety, 309 So.2d 748 (La.App. 4 Cir.1975); Sather v. White, 388 So.2d 402 (La.App. 1 Cir.1980). The court in Sather discussed the requirements of Article 1602 as follows:

“Several conditions must be met, however, before Art. 1602 will be applied. The material witness must have absented himself contrary to the wishes of the party seeking a continuance. That a subpoena has been issued is not alone a sufficient basis to invoke Art. 1602. Loicano v. Maryland Casualty Insurance Company, 301 So.2d 897 (La.App. 4th Cir.1974). Materiality of the missing evidence must be demonstrated. Gallin v. Travelers Insurance Company, 323 So.2d 908 (La.App. 4th Cir.1975), writ denied 329 So.2d 452 (1976). The party requesting a continuance must have exercised due diligence, yet been unsuccessful in obtaining the material evidence. Estopinal v. Thomas, 273 So.2d 54 (La.App. 4th Cir.1973).” (Emphasis ours.)

The case at bar had been fixed for trial since April 12, 1982, approximately six weeks prior to the trial date. Some of the witnesses alleged by defendant to be material were employees of defendant corporation and under their supervision and control. Insofar as these witnesses are concerned, we can hardly imagine that a defendant corporation could not secure the presence of its own employees to testify on its behalf in a legal proceeding instituted against that corporation. Insofar as the alleged material witnesses who defendant claims are not its employees, defendant should have had ample time to depose them or to make voluntary arrangements to have them present. It is true that they were not amenable to subpoena issued by a Louisiana court, but defendant could have taken other steps to secure their testimony.

The alleged material witnesses also had not absented themselves contrary to the wishes of defendant. It is impossible for a witness who was never present in Louisiana to absent himself from Louisiana. Had they been here and returned to Texas so as to avoid testifying, defendant may have had valid grounds for a continuance under Article 1602. What we have here, however, is a failure on the part of the defendant to take the necessary steps to secure the alleged material testimony.

Even assuming arguendo that the testimony was “material”, defendant has failed to exercise due diligence in attempting to secure the presence of these witnesses. Alleging due diligence and showing it are two entirely different matters. Absent such a showing, defendant’s motion for a continuance was properly denied. The trial court was therefore correct in denying a continuance under Article 1602.

OPEN ACCOUNT

Defendant next contends that this suit is not properly one on “open account”, thus making the court’s award of attorney’s fees under LSA-R.S. 9:2781 improper.

Louisiana courts have stated that, in order for a course of dealings to be considered as an open account, some of the factors to be examined are:

1. Whether there were other business transactions between the parties;
2. Whether a line of credit was extended by one party to the other;
3. Whether there are running or current dealings; and,
4. Whether there are expectations of other dealings.

Womack Brothers, Inc. v. Equipment Rental Services, Inc., 399 So.2d 661 (La.App. 1 Cir.1981); Monlezun v. Fontenot, 379 So.2d 43 (La.App. 3 Cir.1979).

Filed as exhibits P — 1, P-2, and P-3 are copies of invoices rendered by plaintiff to defendant for work done which indicate that from at least February 11, 1980, through March 11, 1981, plaintiff rendered services, etc. to defendant. Herbert Lau-rents, owner and operator of Herb’s Machine Shop, plaintiff herein, testified that they had done work for defendant for at least a year prior to the last statement. The work was performed on each occasion, and plaintiff eventually billed defendant and received payment. There is nothing in the record before us to show that plaintiff required immediate payment by defendant or that plaintiff would not have performed further work had defendant requested it. We therefore find that this was an open account and that the trial court properly awarded attorney’s fees to plaintiff.

Accordingly, for the reasons assigned, the judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.


author: DOUCET, Judge.

text:
    Lyle DECUIR, et al., Plaintiffs-Appellants, v. TOWN OF MARKSVILLE, Defendant-Appellee.
    No. 82-547.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.
    Writ Denied March 25, 1983.
    Tucker Melancon, and Rodney Rabalais, Marksville, for plaintiffs-appellants.
    Michael Kelly, Marksville, for defendant-appellee.

      Before DOMENGEAUX, FORET and DOUCET, JJ.
   DOUCET, Judge.

This case involves an attempt by plaintiffs to have a zoning ordinance declared invalid on the grounds it effects unlawful spot zoning. Defendant, Town of Marks-ville, contends the rezoning of “The Tassin Lot” from single family to multi-family classification is justified as alleviating the housing shortage in Marksville. From an adverse judgment in the trial court, plaintiffs appeal.

The sole issue on appeal is whether the rezoning of the Tassin Lot by the Town Council of Marksville constitutes spot rezoning without rational justification.

A comprehensive zoning plan of the Town of Marksville was adopted in 1972 pursuant to LSA-R.S. 33:4721, et seq. for the purpose of promoting health, safety, moral, and general welfare of the community. The plan was designed to “lessen congestion in the streets, to prevent overcrowding of land; to secure safety from fire, panic, and provide adequate light and air; to avoid undue concentration of population ... giving resonable (sic) consideration, among other things, to the character of the districts and their peculiar suitability for particular uses, with a view to conserving the value of buildings and encourage the most appropriate use of land throughout the town.”

On July 20, 1982, the Marksville Town Council rezoned a town lot owned by Cleo Tassin from Residential A-2 (single family) to Residential A-3 (multi-family). The Mayor and three Councilmen voted for the zoning change; two Councilmen voted against the change.

The Tassin Lot is a small lot lying in the middle of a large area zoned Residential A-2. It has dimensions of approximately 96 feet on the front and is 500 feet deep. It fronts on Main Street, between Action and Decuir Roads.

Petitioners, 32 residents and/or land owners of the Town of Marksville, opposed the rezoning and filed suit requesting that the rezoning action of the Council be abrogated and declared invalid as an illegal “spot zoning” and as an excessive use of police power with no rational or substantial relation to the public health, safety, and general welfare purposes of the comprehensive zoning plan for the Town as a whole.

The Town of Marksville alleged in its answer and at trial that the rezoning fulfills a need for additional housing. The Town of Marksville candidly admits the area rezoned is indeed a spot, nevertheless it is contended that the character of the neighborhood is changed but little, if at all, as it will remain essentially a residential neighborhood. Defendant seeks to justify the change alleging Marksville is facing a housing shortage and development in other areas of Marksville zoned A-3 is impractical.

At trial, plaintiffs adduced testimony that they had acted in reliance upon the previous legislative and judicial zoning decisions affecting the area wherein the Tassin Lot is situated, and that the zoning change affected their vested property interests. Lyle Decuir, plaintiff, whose home is situated next to the Tassin Lot, testified that he purchased his home in reliance on the neighborhood being zoned Residential A-2. Decuir feared increased congestion, and decreased security and privacy. Similarly, Donald Gagnard, plaintiff, testified he put money into his house “in the past few years, mainly after we had gone to Court before; and I felt it was safe to put money into the house.”

Donald Gagnard testified he rented the home he now owns for a year before purchasing it, and that the character of the neighborhood, its private and quiet characteristics, were considerations in his decision to purchase his home.

There was also evidence to the effect that the value of neighborhood property, as well as its character, would not be adversely affected by this zoning change. The record reveals that the area in the vicinity of the disputed lot contains a house trailer (A-2 violation); a small lot zoned A-3 for a house trailer, presently vacant; an implement shop; a substantial number of vacant lots; a substantial amount of rental dwellings; a vacant lot formerly serving as a lumber yard; an area zoned A-8 for apartments; an area zoned specifically for a pedicure shop; and in the vicinity, a honey bee plant.

Considerable disagreement existed as to the availability for development of “other” A-3 areas within the town. Plaintiffs introduced testimony and exhibits indicating there are considerable undeveloped areas in the town zoned A-3. Defendant sought to rebut this with testimony of Mr. O.J. Scal-lan. Mr. Scallon operates an auto dealership and is the largest building contractor and landlord in Marksville with nearly 150 family units, including apartments, controlled by he and his family, all in a town with a population of approximately 5,200 people. Mr. Scallan testified that the land referred to by plaintiff was, in part, a proposed shopping center, unavailable for sale either due to a multitude of heirs or lack of reasonable pricing, lack of sewerage, water, drainage or access. Mr. Scallan testified that he had recently built apartments in Hessmer (4 miles from Marksville) because he couldn’t locate these apartments in Marksville in an area designated A-3.

The principles governing zoning regulations were set forth in Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659, 672 (La.1974) as follows:

The authority to enact zoning regulations flows from the police power of the various governmental bodies; zoning is a legislative function. State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440 (1923); State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613 (1921); Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1st Cir.1966); Smith v. City of Baton Rouge, 233 So.2d 569 (La.App. 1st Cir.1970). Courts will not and cannot substitute their wisdom for that of a legislative body or other zoning authority except when there is an abuse of discretion or an excessive use of power. However, the exercise of a police power in zoning cannot be made without substantial relation to the health, safety and general welfare of the public. City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503 (1947); City of Shreveport v. Bayse, 166 La. 689, 117 So. 775 (1928). All ordinances are presumed valid; whoever attacks the constitutionality of an ordinance bears the burden of proving his allegation. City of New Orleans v. Beck, 139 La. 595, 71 So. 883 (1916); Wald v. Leche, 189 La. 113, 179 So. 52 (1938). However, rezoning on a piecemeal or spot basis is highly suspect. Generally, property owners may rely upon the previous exercise of police power in zoning, expecting that changes in zoning will only be made so as to affect vested property interests when the change is required to assure the public welfare. A city purporting to act under its police powers cannot create in a large area of property zoned in one classification an island of one parcel of land relegated to another zoning classification when no rational reason exists for such a separate classification. 51 A.L.R.2d 311, Reynolds v. Barrett (1938), 12 Cal.2d 244, 83 P.2d 29.

See also: Folsom Road Civic Assoc. v. Parish of St. Tammany, 407 So.2d 1219 (La.1981); Furr v. Mayor and City Council of Baker, 408 So.2d 248 (La.1981); and Morton v. Jefferson Parish Council, 419 So.2d 431 (La.1982).

From the foregoing, it is apparent that the issue presented is whether a rational reason exists for creating an island, relegated to one zoning classification, in a large area of property zoned otherwise.

“The zoning function is traditionally a governmental task requiring the ‘balancing (of) numerous competing considerations’ and courts should properly ‘refrain from reviewing the merits of (such) decisions, absent a showing of arbitrariness or irrationality.’ Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977).” Larkin v. Grendel’s Den, Inc., - U.S. -, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982) decided Dec. 13, 1982. Courts will uphold such ordinances unless it is clearly shown that the action of the governing authority was arbitrary or unreasonable, or that the action taken violated a provision of the constitution or of the enabling statutes. Hernandez v. City of Lafayette, 399 So.2d 1179 (La.App. 3rd Cir.1981); Hardy v. Mayor and Board of Aldermen, City of Eunice, 348 So.2d 143 (La.App. 3rd Cir.1977). Doubtful cases will be resolved in favor of the challenged zoning enactment. Four States Realty Co., Inc. v. City of Baton Rouge, supra; Kirk v. Town of Westlake, 373 So.2d 601 (La.App. 3rd Cir.1979).

We cannot conclude that the zoning ordinance is arbitrary, irrational, or unreasonable. The zoning change was enacted for the welfare of the public inasmuch as it sought to alleviate a housing shortage and the inaccessibility of alternative A-3 areas was a rational reason for separate classification as the area selected was already being used for numerous uses other than those allowed in an A-2 zone and the addition of apartments was likely to improve the neighborhood. Rezoning on a piecemeal basis is highly suspect, nevertheless, we are compelled by the abovementioned jurisprudence to resolve the doubts herein in favor of the validity of the challenged zoning enactment.

Accordingly, the zoning ordinance is declared valid and the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.

      . This court, in a related proceeding, held that a previous attempt at rezoning the Tassin Lot was invalid for failure to comply with notice provisions of the Marksville Zoning Ordinance —Tassin v. City of Marksville, 411 So.2d 1240 (La.App. 3rd Cir.1982).


author: STOKER, Judge.

text:
    SUCCESSION OF John A. BOOK.
    No. 82-481.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1983.

      George Griffing, Jonesville, for plaintiff-appellant.
    Brumfield & Brumfield, William P. Brumfield, Baton Rouge, for defendants-ap-pellees.
    Before STOKER, YELVERTON and KNOLL, JJ.
   STOKER, Judge.

This is a suit for declaratory relief for determination of whether property of John A. Book and the heirs of Cora Jones Book sold at a tax sale was redeemed by John A. Book for himself and Cora’s heirs or was a purchase for his sole account. The property in question, described in footnote one, was originally purchased as community property during the marriage of John and Cora Jones Book. The latter, the second wife of John A. Book, died leaving seven children of her marriage with John. After Cora’s death, John A. Book failed to pay taxes on the property in question, and J.L. Calhoun purchased the property at a tax sale on June 20, 1931, for delinquent taxes of $38.95. Book had married Emma Fisher on October 31, 1930. The property was purchased from J.L. Calhoun, some fifteen months after the tax sale, by an act which purported to be an ordinary cash sale. The recited consideration was $52.00, and at that time, the period within which a redemption could take place was twelve months after the tax sale.

John A. Book died in 1964 while still married to Emma Fisher Book. Tilton G. Book, a son of John and Emma, has been qualified as administrator of the succession. Tilton brought this suit as administrator for a declaratory judgment seeking a determination as to whether John A. Book’s repurchase of the land was a redemption, which inured to the heirs of Cora Jones Book for their one-half interest, or whether Book repurchased for himself exclusively, or to more accurately state the matter, did Book repurchase for the community which then existed between himself and Emma Fisher Book. Plaintiff alleges that the property is owned one-half by Emma and one-half by the succession of John A. Book.

If the repurchase was a redemption, then the children and heirs of Cora have a claim to one-half of the property and all the children and heirs have a claim to the other one-half of the property. John A. Book left three sets of children:

1) Tillman H. Book, a child of Book and his first wife, Ollie Book,

2) The children of Book and Cora Jones Book, and

3) The children of Book and Emma Fisher. There is no dispute concerning the fact that Book’s children of all three marriages will share in his half of the property under any determination. However, if a redemption took place, Cora’s heirs have an exclusive claim to her one-half interest. If a sale to John and Emma took place, one-half of the property belongs to Emma.

PARTIES TO THIS LITIGATION

The petition for declaratory judgment before us was brought by the succession administrator, Tilton G. Book; in his representative capacity, he is the sole plaintiff. He named as defendants all children of all marriages including himself. He also named Emma Fisher Book. For purposes of the record the names of the defendants are set forth in a footnote.

PROCEDURAL HISTORY AND STATUS OF THE CASE

Tillman H. Book and all the children of Cora Jones, except Lovine Book Morace, filed an answer to the petition for declaratory judgment. At trial and on appeal they contend the property falls within the community of John A. Book and Cora Jones, his second wife.

On appeal, the administrator has for the first time filed a peremptory exception of prescription and asked that the case be remanded to the district court for trial of the exception.

The principal issues before us on appeal are:

1) Should this case be remanded to the trial court for trial of the exception of prescription filed after the appeal under LSA-C.C.P. art. 2163?

2) Was the repurchase of the property from J.L. Calhoun a tax redemption or a conveyance to the community then existing between John and Emma Fisher Book?

3) If the act was a redemption, does the fact that the property was redeemed only in the name of John A. Book estop Cora’s children from claiming (as original co-owners of the property) that the redemption inures to their benefit?

4) Did possession of the property by John A. Book after the redemption give notice to Cora’s children of their father’s alleged intent to possess adversely to them sufficient to support acquisitive prescription against them?

The trial court found that the property reconveyance was a tax sale redemption and the property fell within the former community which existed between John A. Book and Cora Jones. We find the district court resolved the issues before him correctly. In our opinion the exception of prescription may not be urged by the administrator, and the issues of law raised on appeal must be resolved in favor of the defendants. We affirm the judgment of the district court.

THE PEREMPTORY EXCEPTION OF PRESCRIPTION

The administrator asserts that if the peremptory exception of prescription is pleaded for the first time in the appellate court the plaintiff may demand that the case be remanded for trial on the exception if the matter is pleaded prior to the submission of the case for a decision and if proof of the ground of the exception appears in the record. LSA-C.C.P. article 2168. Although correct in his statement of the law, the administrator is not entitled to have the case remanded because he is not the proper party to assert the exception. In his exception the administrator pleaded two kinds of prescription, one liberative and one acquisitive.

The first basis for the administrator’s plea is that prescription found in Article 1030 of the Civil Code, which is as follows:

“The faculty of accepting or renouncing a succession becomes barred by the lapse of time required for the longest prescription of the rights to immovables.”

This prescriptive period is thirty years as provided in LSA-C.C. article 3548.

It is true that it appears from the record that Cora Jones’ succession has never been opened and that more than fifty years have passed since her death. We pretermit the question of whether Cora’s heirs may have accepted the succession tacitly. The administrator, in this case whether in his individual or representative capacity, has no right to assert the prescription for accepting a succession. It is well settled in the jurisprudence that only an accepting co-heir or the transferee of an accepting co-heir may assert such prescription against an heir. Sun Oil Company v. Tarver, 219 La. 103, 52 So.2d 437 (1951), Lee v. Jones, 224 La. 231, 69 So.2d 26 (1953), Succession of Seals, 142 So.2d 629 (La.App. 2nd Cir.1962), Succession of Blanchard, 243 So.2d 329 (La.App. 4th Cir.1971).

The thirty-year prescription provided by Article 1030 is a liberative prescription. We are not at this point concerned with acquisitive prescription, and the liberative prescription pleaded under Article 1030 concerns the faculty of accepting the succession of Cora Jones Book.

The typical statement of the interpretation of Article 1030 is exemplified in the last of the cases cited above, the Blanchard case. It holds that “since the plea of prescription is available only to the succession, or its representative, or a co-heir who has timely accepted the succession, it cannot be invoked by the trespasser or one holding land or other succession property without semblance of right or title.” In this case the heirs of Cora Jones Book stand together, and it is the administrator of the Succession of John A. Book who attempts to invoke the bar of prescription. John A. Book was not an heir of his wife Cora Jones Book. Hence, Tillman G. Book, as succession representative of John A. Book’s estate, has no right or title in the estate of Cora Jones Book. In the language quoted above from Blanchard, the reference to “succession, or its representative” would apply, in this instance, to Cora’s succession or its representative, had there been one.

For the foregoing reasons the plea of liberative prescription filed with us should be overruled because the plaintiff is not a party with the right to plead the prescription.

THE RECONVEYANCE

In his appellate brief, the administrator alleges as error the finding of the trial court that the deed of J.L. Calhoun to John A. Book, dated September 21, 1932, was a redemption deed, redeeming property from a tax sale.

The portion of the trial court’s written reasons treating this question is quoted as follows:

“The case was originally heard in the Court on 8 March, 1982 and the Court issued an order, on its own motion, on 14 April, 1982 ordering a limited retrial for the reception of evidence of the value of the subject property on 21 September, 1932 when it was conveyed by Calhoun to Book. The Court was of the opinion that the value of the property at this time was critical to a decision in the case.
“Pursuant to that order, a limited retrial was held on 10 May, 1982 at which time the Court received evidence of the value of the property on 21 September, 1932.
“The evidence adduced at the new trial, when considered with that of the original hearing, convinces me that the value of the 140 acre Book property on 21 September, 1932 was so much in excess of the $52.00 cash consideration recited in the deed that that transaction cannot by any stretch of the imagination be considered as an ordinary purchase of property for fair market value.
“In fact, when interest, cost of deed preparation, and cost of filing and recording are added, the $52.00 cash consideration appears to be so close to what the redemption price wohld be that any difference is inconsequential.
“The one year period given to a tax debtor for the right of redemption had barely expired in this case. But there is nothing in the law which prohibits the tax purchaser from waiving any prescriptive rights he may have acquired. The conversation between J.L. Calhoun and J.A. Book, as related by Mrs. Emma Book, when considered with Calhouns actions, indicate, that this is exactly what he did.
“I therefore am of the opinion that the instrument of 21 September, 1932 was actually a redemption deed and did not change the ownership of the property.”

After a careful reading of the record, we find that the trial court’s conclusions are correct.

ESTOPPEL

The administrator urges that the case of Bridges v. Trevino, 64 So.2d 528 (La.App. 1st Cir.1953) requires that we declare the Cora Jones heirs to be estopped from claiming the benefits of the redemption sale as co-owners. In that case, the court held that heirs who refused to help other heirs to pay part of the redemption price and refused to help pay taxes on the property were estopped from claiming ownership of the property some twenty years later. The court in that case based its decision on principles of equity.

Bridges v. Trevino, supra, is not applicable here. The evidence was unchallenged that at least two of Cora Jones’ heirs, who were minors at the time of the tax sale and redemption, were never apprised of those transactions. The other heirs did not testify, but it was stipulated that their testimony would be substantially the same. There is no evidence that Cora Jones’ heirs ever arbitrarily refused to pay taxes or that John A. Book requested that they pay taxes. No grievous harm has been suffered John A. Book’s other heirs. The other heirs of John A. Book were found by the trial court to have lived on the property along with the Cora Jones heirs up to the date of the trial. No allegations can be made, nor would any be supported by the evidence, of facts similar to the ones that convinced the court in the Bridges case to invoke equity. The payment of taxes was only briefly mentioned in the testimony, and evidence on the issue was not developed.

ADVERSE POSSESSION

Iri addition to the liberative prescription pleaded under LSA-C.C. article 1030, the administrator-appellant articulated in his peremptory exception filed in this court a claim of acquisitive prescription under LSA-C.C. articles 1305 and 3475. The evidence discloses no indication that John A. Book intended to possess adversely to the descendant co-owners. In fact, one of Cora Jones heirs, Artie Pecanty, testified that when their father received money from an oil lease granted on the property, he gave each of the Cora Jones heirs one-seventh of what would have been their mother’s share. This indicates that Mr. Book did not intend to possess adversely to the Cora Jones heirs despite the deed failing to mention the co-heirs. There is no basis for acquisitive prescription.

Although we reach these conclusions based on such evidence as is in the record, we conclude that the appellant does not have a right to a remand under LSA-C.C.P. article 2163 to take further evidence on the point. Appellant relies on the second paragraph of Article 2163. That paragraph provides:

“If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.”

The evident sense of this paragraph is that the right to demand a remand in such circumstances is given to the party against whom the peremptory exception of prescription is pleaded. It is not given to the party who pleads the exception. Fiorello v. Knecht, 334 So.2d 761 (La.App. 4th Cir. 1976), writ denied, 338 So.2d 300 (La.1976). Inasmuch as the administrator appellant filed an exception of acquisitive prescription against the defendants who are Cora Jones Book’s heirs, the right to demand a remand would be theirs rather than the other way around.

For these reasons we deny the request of Tilton G. Book, administrator of the Succession of John A. Book, for a remand to the trial court for the taking of evidence on the issue of acquisitive prescription.

DECREE

The judgment of the trial court is affirmed. All costs of this appeal are assessed to appellant.

AFFIRMED.

      . The S/2 of the SW/4 of Section 10, and the NW/4 of the NW/4 and the N/2 of the NE/4 of the NW/4 of Section 15, T4NR6E, Concor-dia Parish, Louisiana, containing 140 acres, more or less.
      LESS AND EXCEPT:
      1) A 150 X 300 conveyed to Tilton G. Book by deed dated August 20, 1960, and recorded in COB K-7, Page 133.
      2) One acre more or less conveyed to Shirley Book, by deed dated April 5, 1963, recorded at COB F-8, Page 417.

      . The children of John A. Book and Cora Jones Book were Artie V. Pecanty, Leroy L. Book, John Edmond Book, Ira Book, John A. Book, Jr., Curtis D. Book and Lovine Book Morace.

      . The defendants in this suit are: Tilton G. Book; Tillman H. Book; Artie V. Pecanty; Leroy L. Book; John Edmond Book; Ira Book; John A. Book, Jr.; Curtis D. Book; Lovine Book Morace; Melvin Ray Book; Shirley Dae Book; Catherine E. Paris; Judith A. Dunlap; Shelby Gene Book; and Emma Fisher Book.

      .Since this opinion was drafted, counsel for the plaintiff, the administrator of the Succession of Book, has advised this court that his client wishes to withdraw the request for a remand. Counsel requests that we decide the prescription issue on the basis of the evidence in the record.

      . See footnote four.

      . See footnote four.


author: ROY NOBLE LEE, Justice,

text:
    Joseph TAYLOR v. STATE of Mississippi.
    No. 53930.
    Supreme Court of Mississippi.
    Jan. 5, 1983.
    J.W. Miller, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Joseph Taylor was indicted, tried and convicted in the Circuit Court of the Second Judicial District, Harrison County, for rape, Honorable J. Ruble Griffin, presiding, and was sentenced to life imprisonment. As a result of convictions in the State of Illinois, a sentencing hearing was held and Taylor was sentenced as an habitual criminal without parole or probation. This trial was the second on the same indictment, the first trial having resulted in a mistrial when the jury could not agree upon the verdict. Taylor has appealed here and assigns six (6) errors in the trial below.

I.

The jury verdict was against the weight of the evidence.

II.

The court erred in declining to grant a mistrial when witnesses testified to a time when the rape occurred different from their testimony during the first trial.

The victim is age 19, originally from the State of New Jersey, and was living with her husband in an upstairs apartment, Biloxi, Mississippi, on June 4, 1980. He was stationed at Keesler Air Force Base.

' According to the victim, on the morning of June 4, her husband left the apartment at 5:30 a.m. in order to check in at the Air Force Base by 6:00 a.m. Upon his departure, she went back to bed, but later was awakened by a knock at the door. She identified the person as appellant. He requested admittance on the pretext that he had come to repair some plumbing fixtures. The victim had discussed plumbing problems with the apartment manager, and, thinking that he was the plumber, she let appellant come into the apartment. He began to check the kitchen and the bathroom pipes and, as he came out of the bathroom, he grabbed the victim and threw her to the floor in the bedroom. She struggled and he began to strangle her almost causing her to lose consciousness. The victim resisted as long as she could, but the appellant threw her on the bed, tore open her robe and raped her. The attacker wore a fatigue shirt, blue jeans and black and white sneakers. When he left, she got dressed, went downstairs and reported to her neighbors in the apartment below what had occurred. She was taken to the Air Force Base hospital where Col. Donald Gril-lo, M.D., examined her. The victim picked out a photograph of the appellant from a picture lineup and positively identified him in the courtroom.

Mrs. Iola Marshall was a visitor in the home and apartment of her daughter and son-in-law on June 4,1980. The apartment was downstairs from the upstairs apartment in which the victim and her husband lived. Mrs. Marshall’s son-in-law was also a service man and he left around 5:30 a.m. on June 4 for work at the base. Mrs. Marshall had gotten up and was drinking coffee in the livingroom when she heard noises from upstairs, as if someone was hitting the floor, but she was not alarmed. Later, as she opened the drapes, she saw a man walk by outside the apartment, whom she identified as appellant. She was positive that appellant was the man walking by, since she had seen him on other visits to her daughter’s apartment. Mrs. Marshall stated that when the victim came downstairs into their apartment, she was highly upset, and was holding her neck. When Mrs. Marshall learned what had happened, the victim was taken to the hospital.

Steven Cook from the Biloxi Police Department, conducted an investigation of the matter. He presented the victim with a photographic lineup and she immediately picked out appellant from a group of five individuals with similar features. As a result of the investigation, officers went to the trailer of appellant at 4:46 p.m. on the day of the rape, which was in a trailer park approximately two hundred (200) yards from the apartment. Their purpose was to arrest appellant, and when they arrived at the trailer, they heard music playing inside, but there was no answer when they knocked at the door. The local manager of the trailer park let the officers in the trailer, and appellant was found hiding underneath a bed. The following day, Mrs. Marshall was presented the same photographic lineup, and she also picked out appellant as the person she had seen walk by the apartment on June 4.

Appellant’s defense was an alibi. Bonita L. Watkins, timekeeper at the City Barn, employed by the City of Biloxi, identified appellant’s time card for June 4, 1980, which indicated that appellant clocked in at 6:54 a.m. and clocked out at 3:23 p.m. Supervisor Solberg and foreman Jackson for the city ditch crew testified that appellant worked with them on June 4 and that their work hours are from 7:00 a.m. to 3:30 p.m. Solberg remembered taking Taylor to a job site in Bay Yista, leaving the barn around 7:15 a.m. and returning about 8:30 a.m. The foreman of the ditch crew- remembered Taylor clocking in on June 4 and Solberg taking him to the job site.

On the first trial, the victim and Mrs. Marshall testified that the rape occurred at 7:00 a.m. and afterward. On the second trial, they revised the time to shortly after 6:00 a.m. Appellant’s alibi did not cover the period prior to 6:54 a.m. and he did not testify.

On the facts stated above, the question of guilt was for the jury to decide. In considering all the evidence favorable to the State’s case, together with the reasonable inferences flowing therefrom, we cannot say that the verdict of guilty was contrary to the overwhelming weight of the evidence. Bell v. State, 411 So.2d 763 (Miss.1982); Warn v. State, 349 So.2d 1055 (Miss.1977).

The appellant contends that the lower court should have granted a mistrial when the victim and Mrs. Marshall testified to a different time of the rape on the second trial from the first trial. The different time interval was not covered by appellant’s alibi.

The appellant moved the court for a new trial on the ground of the difference in the testimony, which the court overruled. The lower court properly ruled on the motion because a variance or inconsistency in the testimony of witnesses is not a matter for mistrial, but is for the jury to consider as bearing upon the credibility of the witnesses. The victim and Mrs. Marshall admitted that they had changed the time of the rape. Mrs. Marshall stated that she had thought back on the events and that she was upset when the victim came downstairs, thus her reason for stating a wrong time. Peeples v. State, 218 So.2d 436 (Miss.1974); Carraway v. State, 167 Miss. 390, 148 So. 340 (1933).

Probably, the appellant intended to ask for a continuance rather than a mistrial, on the ground of being surprised at the change in testimony. However, he filed no proper motion for a continuance, and, on motion for new trial, he did not produce any witnesses to prove an alibi from 6:00 a.m. to 7:00 a.m. on June 4, and he made no proof or indication of the fact that he could produce other witnesses to establish an alibi for such period of time. Therefore, the lower court did not err in denying a mistrial and overruling the motion for new trial.

III.

Did the lower court err in admitting into evidence photographs of the appellant taken from police files?

A photographic lineup of five (5) individuals, including the appellant, was presented to the victim and Mrs. Marshall. They each selected appellant as the person at the victim’s apartment on June 4. Although appellant does not attack the photographs as being overly suggestive, he contends that they were mug shots and implied to the jury that appellant had a prior criminal record.

In Passons v. State, 239 Miss. 629, 124 So.2d 847 (1960), a robbery victim identified Passons from a group of photographs which were held to be properly excluded because they included pictures of convicted criminals showing their file number and that they were convicts. The present situation is distinguished from Passons because the trial judge required anything suggestive that the individuals in the photographs were convicts was covered or excluded. In Houston v. State, 360 So.2d 468, 469 (Fla.Dist.Ct.App.1978), the Florida court considered this question and indicated that the photographs would not have been objectionable had they properly been covered or cropped. The Court said:

Our review of the record in this case leads us to the conclusion that the introduction of the photographs, clearly identifiable in this case as “mugshots” and showing a date prior to the date of the crimes charged in this matter, into evidence constituted reversible error. See e.g., United States v. Harrington, 490 F.2d 487 (2d Cir.1973); Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966); Williams v. State, 110 So.2d 654 (Fla.1959); and Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977). Compare State v. Rucker, 330 So.2d 470 (Fla.1976). We note, however, that if the photographs were properly cropped this objection could be alleviated.

We are of the opinion that the court did not err in admitting the photographic lineup into evidence.

IV.

Did the lower court err in granting Instruction D-3?

The appellant requested Instruction D-3 which pertains to the alibi defense. The instruction was amended by the lower court, and in that form, follows:

The Court instructs the Jury that alibi means elsewhere or in another place at the time of the alleged offense.
Alibi is a legal and proper defense of law. The defendant, JOSEPH TAYLOR, is not required to establish the truth of his alibi to your satisfaction, but if the evidence or lack of evidence in this case raises in the minds of the Jury a reasonable doubt as to whether the defendant was present and committed the crime, then you must give him the benefit of that doubt and find him NOT GUILTY.

The State objected to the original instruction on the ground that the appellant was “asserting the defense of alibi by saying that he was at work with the Biloxi Street Department at the time of the alleged offense,” when the appellant did not testify in the case. Of course, the sense of the instruction is that appellant’s evidence was to the effect that he was working at the time of the offense.

However, we think that the instruction as amended properly instructed the jury on the defense of alibi, was sufficient to submit that issue to the jury and does not constitute reversible error.

V.

Did the lower court err in excluding medical records from evidence?

Dr. Donald Grillo testified for the State concerning his examination of the victim. On cross-examination, the appellant’s attorney did not question him specifically concerning his examination or about the victim’s medical records. However, the attorney told the court he wanted the whole record to be introduced, which the lower court permitted. No objection was made at that time by the State.

During the conference for passing upon instructions, the appellant’s attorney asked for a particular instruction on penetration basing as ground that the history given by the victim to Dr. Grillo indicated there was no penetration of her by the appellant. The district attorney objected and for the first time indicated that he did not understand the medical record was being introduced into evidence and moved to exclude the same. The record had not been passed to the jury nor had the jury seen the record, and the court sustained the motion to exclude. The appellant now contends that the history given by the victim to Dr. Grillo, as reflected by the medical record, indicated that the appellant attempted to penetrate her but he did not succeed. This history had the effect of contradicting the victim.

The victim testified positively that tnere was actual penetration of her by the appellant. The attorney for appellant did not lay a predicate for impeachment by asking her whether or not she told Dr. Grillo there was no penetration. The records were not admissible without laying the predicate for impeachment, and, therefore, the court did not err in excluding such records. Scott v. State, 274 So.2d 376 (Miss.1973); Ford v. Byrd, 183 Miss. 846, 184 So. 443 (1938).

We note that the medical records also show, under “Comments,” that Dr. Grillo found spermatozoa to be present in the victim, which would corroborate the testimony of the victim had the records not been excluded.

VI.

The habitual offender statute was not applicable since the defendant had not served “separate terms” of imprisonment.

The jury returned a verdict of guilty as charged and sentenced the appellant to life imprisonment. After charging the crime of rape, the indictment charged that the appellant previously had committed three crimes of rape and was sentenced to eight (8) to fifteen (15) years in the state penitentiary of Illinois and served at least one (1) year of said sentences. Although the Mississippi Code section was not stated, it is apparent that the State charged and elected to proceed under Mississippi Code Annotated § 99-19-83 (Supp.1981). There are two habitual offender statutes, which follow:

Mississippi Code Annotated § 99-19-81 (Supp.1981)
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
Mississippi Code Annotated § 99-19-83 (Supp.1981)
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Under the first statute, when a person is charged as a habitual offender, and the proof sustains the charge, upon conviction, he shall be sentenced to the maximum term of imprisonment provided by the criminal statute under which he was indicted, without parole or probation. Under the second statute, upon conviction, the accused, when charged that he previously was convicted of two (2) felonies, one of which constituted a crime of violence, and that he actually served one year or more on each sentence, shall be sentenced to life imprisonment without parole or probation.

As mentioned, the charge here is that the appellant was previously convicted on three (3) charges of violence and actually served one year or more on each charge. The proof does not show that he served such sentences on these convictions.

In Yates v. State, 396 So.2d 629 (Miss.1981), Yates was charged with grand larceny as an habitual offender under Section 99-19-83. The evidence showed that Yates had not served separate terms as required by the statute and the case was remanded to the lower court for proper sentencing under Section 99-19-81, which meant the imposition of the five-year imprisonment without parole or probation rather than life imprisonment under Section 99-19-83. The Court said:

In the case at issue sentencing was under § 99-19-83 and cannot be upheld because the record clearly reveals that the defendant had not “served separate” terms as required by the statute. We conclude on the state of this record that the cause should be remanded for proper sentence under § 99-19-81, supra, not inconsistent with this opinion. Bell v. State, 355 So.2d 1106 (Miss.1978). [396 So.2d at 631].

The effect of the Yates decision on the case sub judice is obvious. The purpose and intent of § 99-19-81 was to provide that a person convicted of a felony, having been twice convicted and sentenced previously on a felony offense, and so charged in the indictment, shall be sentenced to the maximum term stated in the statute, without parole; of § 99-19-88 that a person convicted of a felony, having been convicted and sentenced twice before for felonies and having served one year and more on each, one of which convictions was a crime of violence, shall be sentenced to life imprisonment without parole or probation.

Following the precedent established in Yates v. State, supra, we would be required to remand this case to the lower court for resentencing under § 99-19-81. However, since appellant has been sentenced to life imprisonment, which is the maximum penalty imposed by the rape statute, and he has been sentenced without parole or probation as an habitual offender, the correct sentence was imposed, although under the wrong habitual offender section. Therefore, we do not remand the case for sentence as in Yates and the judgment of the lower court is affirmed.

AFFIRMED.

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

      . The appellant did not ask to reopen for the purpose of laying the predicate.


author: BROOM, Justice,

text:
    Pauline Parks RICHARDSON, et vir. v. Betty J. LANGLEY & Sara Blankenship, Sole & Only Heirs at Law of Georgia Pauline Boykin Parks, Deceased.
    No. 53584.
    Supreme Court of Mississippi.
    Jan. 26, 1983.

      Hathorn & Hathom, J. Hoy Hathorne, Louisville, for appellants.
    Fair & Mayo, James C. Mayo, Louisville, Hardy R. Stennis, Macon, for appellees.
    Before WALKER, P.J., and BROOM and DAN M. LEE, JJ.
   BROOM, Justice,

for the Court:

Mental capacity of a grantor (Georgia Pauline Boykin Parks) to execute a warranty deed is the sole issue in this case appealed from the Chancery Court of Winston County, the Honorable Edward C. Prisock, Chancellor, presiding. The lower court found that grantor Georgia Pauline Parks lacked the requisite mental capacity to execute the deed because of medication she had been taking. Since the trial below, grantor Parks died and her action was revived in the name of her heirs at law, the appellees now. Upon the record before us, the decree must be reversed.

Grantor Parks, at the time of the events in question, was a sixty-five-year-old woman suffering from severe rheumatoid arthritis. She had other health problems including a broken femur. Grantor Parks was admitted to the hospital on June 29, 1980, and was placed on various medications, including Iberet 500, Clinoril, Macrodantin, P-200, and Flexeril. These medications were administered to Parks on a regular basis during her ten days in the hospital. In addition to the aforementioned medications, Parks was also prescribed on a “PRN” (as needed) basis, Phenaphen, and Codeine, Stadol, and Phenergan, and Dal-mane.

On July 1,1980, the appellants, Mrs. Pauline Parks Richardson and her husband, Speed Richardson, came to see Parks. Parks’ daughter, Betty Langley, was present in the room. Their testimony is that at that time they discussed the possibility of Parks selling them her one-third interest in a sixty-eight-acre tract of land originally owned by grantor Parks’ father-in-law, who was Mrs. Richardson’s father.

After the Richardsons left the hospital, they went to their attorney’s office and had the deed in question prepared. Next day, July 2, 1980, they returned to Parks’ hospital room where her daughter, Betty Langley, was again present. On this occasion the uncontradicted evidence establishes that grantor Prks executed the deed with the assistance of her daughter who held the pen and made her (grantor’s) mark for her due to her severe arthritic condition. Her mark was witnessed by her daughter, Betty Langley, and a registered nurse, Mrs. Beverly Holdiness, who was on duty at the time. The deed was immediately carried by the Richardsons for notarization to a notary in the next building, and was filed that same morning.

About six weeks later Mrs. Parks brought this chancery action to set aside the conveyance upon the sole grounds that she was without “the mental or physical capacity to execute” the deed because of her severe pain and her medication. Other facts will be stated as needful in this opinion.

First argument of the appellants Richardson (grantees) is their contention that the lower court erred in overruling the general demurrer which they filed to the amended bill of complaint. We think the lower court correctly overruled the demurrer because the complaint charged lack of mental capacity which is sufficient to withstand attack by demurrer.

Secondly, they argue that the lower court erred in unduly restricting the testimony of Nurse Beverly Holdiness, a subscribing witness to the grantor’s mark. Our study of the record and briefs reveals that the chancellor was not in error because he did not sustain the objections until the nurse had testified that she did not remember the specifics surrounding the execution of the deed. The thrust of the objection was that the nurse should not be permitted to testify about the grantor’s capacity to sign the deed because the nurse had already stated that she could not recall the specifics of the event. In sustaining the objections it is clear that the chancellor did not base his action upon Nurse Holdiness’ capacity as a subscribing witness but was merely sustaining an objection to a question about which the witness had already testified she had no further recollection.

Third argument is the contention that the lower court erred in overruling the appellants’ (grantees’) motion, at the conclusion of the evidence presented by the grantor, to exclude the evidence and find for appellants. We find no error in this regard in view of our rule that in acting upon the motion to exclude and enter a decree for the appellants, the lower court was bound to consider the evidence in a light most favorable to the grantor along with reasonable inferences to be drawn from such testimony. Applying this rule to the case before us causes us to conclude that the lower court did not err in overruling appellants’ motion to exclude and find for them at the close of the presentation of the grantor’s (Parks’) proof.

The fourth and fifth arguments rest essentially upon the contention that the lower court’s decision setting aside the deed executed by Parks in favor of the Richardsons was manifestly wrong and against the overwhelming weight of the evidence. In dealing with these arguments it is to be noted that the only issue at the trial was whether the grantor, Mrs. Parks, was mentally incompetent to execute the deed at the time it was signed on the occasion in question. Fraud, undue influence, confidential relationship, or overreaching was not pleaded, and there is no averment that Mrs. Parks was non compos mentis. Likewise, there is no charge that the consideration for the deed was inadequate.

Well established in this jurisdiction is the long-standing rule that the burden of proving lack of mental capacity rests squarely on the party seeking to have such deed set aside. Thigpen v. Payton, 391 So.2d 629 (Miss.1980); Williams v. Wilson, 335 So.2d 110 (Miss.1976); Herrington v. Herrington, 232 Miss. 244, 98 So.2d 646 (1957); Gillis v. Smith, 114 Miss. 665, 75 So. 451 (1917). Clear and convincing evidence is necessary to establish this lack of mental capacity. Unless the proof put on by the party seeking to set aside a deed establishes that the grantor was permanently insane up to and beyond the time of the execution of the deed, the test of the grantor’s mental capacity is to be applied as of the time of the execution of the deed. Moore v. Stone, 208 So.2d 585 (Miss.1968); Texaco, Inc. v. Musgrove, 253 Miss. 209, 175 So.2d 490 (1965).

We have traditionally made a distinction between “weakness of intellect” and a total lack of capacity to execute a deed. Such a “weakness of intellect” when coupled with another factor, such as grossly inadequate consideration, or the existence of a confidential relationship may be sufficient to warrant the granting of equitable relief. Absent such a confidential relation, or grossly inadequate consideration, a “weakness of intellect” in and of itself, which does not rise to the standard of a total lack of capacity to execute a deed is an insufficient basis upon which to set aside a deed. Kemp v. Kemp, 254 So.2d 876 (Miss.1971); McElveen v. McElveen, 233 Miss. 672, 103 So.2d 439 (1958); Puryear v. Austin, 205 Miss. 590, 39 So.2d 257 (1949); Nubby v. Scott, 186 Miss. 309, 190 So. 911 (1939); Wall v. Wall, 177 Miss. 743, 171 So. 675 (1937); Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41 (1932); Gillis v. Smith, supra; Clark v. Lopez, 75 Miss. 932, 23 So. 648 (1898). This rule allowing an equity court to set aside a deed upon a finding of a weakness of intellect, plus another factor such as grossly inadequate consideration was even more clearly defined in Cunningham v. Lockett, 216 Miss. 879, 63 So.2d 401 (1953). Cunningham held that a weakness of intellect when coupled with grossly inadequate consideration did indeed constitute grounds for setting aside a deed. Nonetheless, we held that “weakness of intellect” required evidence of more than age and sickness on the part of the grantor. Such weakness must be a weakness of the mental faculties. In summary, a party seeking to set aside a deed solely on the grounds of the mental incapacity of the grantor, has the burden of establishing such incapacity by clear and convincing proof focused upon the grantor’s incapacity at the time execution was attempted. Moreover, in the absence of one of the aforementioned additional elements, this “mental incapacity” which must be proven requires proof of more than a “mere weakness of intellect” but rather a total lack of mental capacity on the part of the grantor.

. We now will analyze and evaluate the evidence in the instant case mindful of the legal requirements set forth above. When the deed in question was executed in Parks’ hospital room, the evidence indicates that six persons were present: Georgia Parks, the grantor; Betty Jane Langley, her daughter who witnessed her mark; Pauline Richardson, the grantee; Speed Richardson, the grantee’s husband; Betty Shinn, a neighbor and friend; and Beverly Holdiness, a registered nurse who was the other witness to the grantor’s mark. All six of these persons testified at trial. Also introduced was the deposition of Dr. Morris who was not present at the time of the deed’s execution. Two other witnesses testified as to collateral matters at the trial, not specifically involving the events surrounding the execution of the deed.

As previously indicated, Dr. Morris was not present at the time of the deed’s execution, and specifically testified that he could not give an evaluation of grantor Mrs. Parks’ mental condition on the morning of July 2, the date in question. Cases cited in the briefs are not directly on point of a doctor’s testimony of the effect of drugs on a patient’s mental capacity at a time when the doctor was not present. Nonetheless, such a situation may be analogized to a doctor’s testimony concerning the question of a grantor’s temporary or permanent insanity. In Williams v. Wilson, supra, we were confronted with the question of the validity of a deed which had been executed by an adjudged lunatic. We held that the sanity of a grantor is presumed until the contrary appears and that the burden is on the party asserting the grantor’s insanity. Once the burden of showing the grantor to be permanently insane is met, then it becomes incumbent on the grantee to show that the execution of the deed occurred during a “lucid” interval, and such interval must be shown by strong and demonstrative proof.

Texaco, Inc. v. Musgrove, supra, set forth the distinction between permanent and intermittent insanity, and held that testimony of a grantor’s intermittent insanity will not raise the presumption of insanity at the time of the deed’s execution. Once again the Court emphasized that the crucial time in such a case is the actual time the document is executed. In Musgrove the doctor who testified as to the intermittent insanity of the grantor, did not testify as to the grantor’s mental capacity or lack thereof on the day of the execution of the deed. Holding that such testimony was required, we reversed the trial court and upheld the deed’s validity.

Dr. Morris’ testimony established that grantor Parks was given medication during her hospital stay including four drugs which had the potential to affect her mind. Of those four potentially mind-affecting drugs, only one was being given on a regular basis, i.e., Flexeril, which Dr. Morris testified was a muscle relaxer with very mild tranquilizer properties. Of the other drugs in question, Dr. Morris testified that the hospital records indicated that grantor Parks had not received any of these potentially mind-affecting drugs after four o’clock that morning. Likewise, he testified that if the time of the execution of the deed was after eleven o’clock (which undisputed subsequent testimony did indicate), Mrs. Parks could have been completely “medicine free” when executing the deed.

Although Dr. Morris testified that in his opinion there was a probability that Parks was not competent at the time she executed the deed, on cross-examination he stated there was a possibility that she was entirely mentally competent. He testified that on the occasions when he did see Mrs. Parks, he was able to communicate with her effectively. He indicated doubt that she should have been allowed to execute the deed, and if he had been present he would have suggested another time. Most significantly, Dr. Morris testified he was not able to express an opinion of Mrs. Parks’ mental capacity or lack thereof at the time she executed the document.

The mere fact that a grantor has been taking drugs or alcohol is not sufficient to raise the presumption of incapacity so as to require “strong and demonstrative proof” of a lucid period on the part of the grantee. In Herrington v. Herrington, supra, as previously discussed, we held that the mere fact that the grantor had been taking Demoral, a powerful narcotic, for the pain induced by his terminal cancer, did not ipso facto render him mentally incapable of executing a deed. The Herrington opinion indicated that the grantor’s actions and conversation at the time in question were the primary indicia of mental capacity or lack thereof.

McGowan v. Brooks, 16 So. 436 (Miss. 1894), involved the validity of a deed which had been executed by a grantor who had been drinking all day long. In spite of this fact, testimony was put on to the effect that his actions at the time of the execution of the deed indicated someone who was in full control of his mental faculties. Thus, in spite of the fact that the grantor did not remember executing the deed, the testimony from his attorney and from the creditor to whom the deed was delivered both indicated that the grantor had the capacity to execute the deed. The notary testified that he did not specifically remember the actions and conversations of the grantor, but said that he would not have witnessed the deed in question if he had noted anything wrong. In upholding the validity of the deed, we held that in determining the grantor’s mental capacity under such circumstances, one must look to the actions and words of the grantor at the time execution transpired.

Exum v. Canty, 34 Miss. 533 (1857), is a similar case on the question of a grantor’s mental capacity to execute a deed. There we held that a deed executed by an elderly, paralytic man, who was given to drinking, was valid in spite of testimony from Mississippi neighbors that the man was insane. At the time he executed the deed, the grantor had been living in South Carolina and South Carolina witnesses testified he had the mental capacity to execute a deed.

Reading Herrington, McGowan and Exum together demonstrates our rule that the mere ingestion of substances which have a potential to affect a person’s mind is not sufficient to render ipso facto invalid a deed executed by that person on the ground of lack of mental capacity. Clearly in such circumstances, the grantor’s capacity must be judged within the context of his actions at the time he executed the deed. Here Dr. Morris’ testimony did not establish that grantor Parks lacked mental capacity when she executed the deed to the appellants Richardson.

Parks herself took the stand and testified that she remembered her daughter taking her to the hospital and she remembered being given a shot that made her sleepy. She denied remembering any discussion about her deeding the land away. She testified she remembered little, if anything else, about her entire stay at the hospital, and on cross-examination did not remember going to the hospital at all. McGowan v. Brooks, supra, makes it clear that a grantor’s inability to remember the execution of a deed is insufficient to establish that the grantor lacked the mental capacity to execute the deed.

Appellant Mrs. Richardson (grantee) testified as to the details of the July 2 transaction when the deed was executed. Her testimony was that grantor Parks was normal at the time and discussed details of the matter with her daughter, such as how much of the $9,000 was to be placed in the checking account and how much in the savings account. Mrs. Richardson testified that Parks told her daughter not to notify the welfare department because the first of the month had already come and therefore she would still be eligible for food stamps. Mrs. Richardson testified she showed Parks the $9,000 check payable to Mrs. Parks and, to the best of her recollection, gave the check to Betty Langley, Parks’ daughter, inasmuch as Parks’ arthritic condition rendered her unable to actually hold the check. Speed Richardson, Mrs. Richardson’s husband, took the stand and essentially confirmed in fair detail the substance of Mrs. Richardson’s testimony.

Betty Shinn, who had known Mrs. Parks for approximately twenty-eight years, testified that on July 1, when she and the Rich-ardsons visited grantor Parks in the hospital, Parks was “a little drowsy, but was otherwise all right.” Mrs. Shinn testified that Parks seemed happy about the prospect of selling the land and indicated that she needed money. Shinn testified that on July 2, when they returned and the deed was executed, Parks clearly remembered the fact that they had been by to visit her the day before and again discussed her need for money and directed her daughter as to the proper distribution of the proceeds between checking and savings accounts.

Careful analysis of all of the testimony before the lower court reveals that not one properly qualified witness stated that at the time the deed was executed, grantor Parks lacked adequate mental capacity. The mental capacity of an individual to execute a deed is a nebulous and ethereal quality and at best presents an extraordinarily difficult question for judicial determination. Nonetheless, the orderly function of day-today affairs requires courts to face and adjudicate such questions.

Mississippi jurisprudence has approached this problem from the perspective of being swift to provide a remedy in equity upon proper pleadings, averments, and proof showing circumstances of mental incapacity combined with a separate, readily perceivable, tangible set of circumstances such as undue influence, confidential relationship, fiduciary capacity, grossly inadequate consideration, or complete and permanent insanity. Such external manifestations of some person’s having taken advantage of a grantor’s weakness of mind must be demonstrable by evidence.

Generally, the burden of proving lack of mental capacity rests upon the party asserting such lack. This is because of the presumption that a deed when properly executed was executed by a person with the requisite mental capacity to execute such deed. The smooth functioning of day-today business routine requires this degree of certainty. As our opinions have frequently observed, not even a court of equity should protect a person from merely an improvident decision. See Herrington v. Herrington, supra.

As stated in Gillis v. Smith, supra, we are reluctant to overturn a chancellor on a question of fact, but here reversal is required because his finding of incapacity is against the overwhelming weight of the testimony. In view of the fact that no direct evidence was put on by the appellees of grantor Parks’ mental incapacity at the time she executed the deed, combined with the appellants’ evidence, consisting of the testimony of four witnesses actually present at the time of the execution of the deed, we cannot affirm the lower court’s decree.

REVERSED AND RENDERED.

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

      . Here appellees did not cross-appeal from the lower court’s adjudicating that the deed was properly executed as to notarization, etc.


author: ROY NOBLE LEE,

text:
    Roe Daniel “Pete” MURPHY v. STATE of Mississippi.
    No. 53967.
    Supreme Court of Mississippi.
    Feb. 2, 1983.

      Langston & Lott and Duncan Lott, Booneville, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROY NOBLE LEE and PRATHER, JJ.
   ROY NOBLE LEE,

Justice, for the Court:

Roe Daniel “Pete” Murphy was convicted in the Circuit Court of Lee County, Honorable Neal Biggers, Jr., presiding, on a charge of receiving stolen property and was sentenced to three (3) years in the custody of the Mississippi Department of Corrections. He has appealed here and assigns seven (7) errors in the trial below. We reverse.

Larry Brown, Manager of Fast Freight Systems, Inc., a truckline in Tupelo, Mississippi, drove one of the company’s freight trucks home on Saturday, September 13, 1980, and left his 1973 four-wheel drive Chevrolet pickup at the place of business. The truck was locked, but when he returned to work on Monday morning, around 8:30 a.m., the vehicle was missing, and he reported the theft to the Tupelo police. The next day, Tuesday, September 16, he and a friend attempted to locate the stolen truck and drove to appellant’s place of business, an automobile repair shop in the Chesterfield Community of Lee County.

Brown and his friend walked into the garage, operated by appellant, and saw the front bumper and a winch from the stolen pickup truck lying on the floor. This incident occurred at approximately 9:00 a.m. Brown left the garage and went to the sheriff’s office where he reported the discovery. Detective Hall and two other officers accompanied Brown to appellant’s garage for further investigation. No search warrant was obtained before going there. They arrived at the garage about 10:30 a.m. and entered same, but appellant was not present. An employee went to appellant’s house, approximately seventy-five (75) yards away, and reported to him that the officers were at the garage and wanted to talk with him.

The garage building is a 40 X 60-foot metal building. The shop doors were open when the officers arrived, and the bumper and winch were still plainly visible on the floor inside the shop. When the officers inquired of appellant about the winch, he replied that he had bought it from someone else the day before, but refused to say who sold it to him. The officers then informed appellant that they were taking the winch and bumper and that appellant should come with them to the sheriff’s office. Appellant had not been placed under arrest at this time, and drove his own car to the sheriff’s office. After conferring with the sheriff and chief deputy, Detective Hall placed appellant under arrest when he arrived, the original charge being grand larceny of the truck. Appellant was advised of his rights, and he executed a form granting the officers permission to search his shop. He freely admitted that he understood his rights and said that he had nothing to conceal.

Officer McMullan and another officer went back to the garage to look for other missing items, which Brown had listed in the original theft report, and their search turned up three of them: a Navy-type spotlight, a Cobra CB radio, and several boxes of new and reloaded shotgun shells (all found in various parts of the shop). They were tagged and photographed, and Brown identified them to be from his stolen pickup truck. Later in the afternoon, at approximately 4:00, the officers decided to question appellant further. Officers Hall and Miller were present and advised appellant of his rights, and he voluntarily signed a waiver of those rights. The officers then asked appellant to make a statement, but he refused. They testified, however, that, immediately, without any additional questions being asked, appellant, of his own volition, said that he didn’t steal the truck, but that he knew who did; that the person was a friend and he did not want to cause him any trouble; that he knew the items were stolen, but that it was too good a bargain to turn down; and he suggested a good place to begin looking for the vehicle (the vehicle was found in that area later).

On the trial, appellant admitted signing the forms but denied that he went ahead and talked to the officers, and he denied saying that he knew the items were stolen and who stole them. He testified that he bought the items from a person a day or two before the police came and gave him five hundred dollars ($500.00) in cash for a machine, the winch and bumper, a box of tools and two (2) chain saws; that the spotlight, CB radio and shotgun shells were part of this deal and the man just gave him those things; that he didn’t know the man’s name, and had not seen him before or since; that he had no reason to believe the articles were stolen; that, if there had been something to indicate a theft, he would have hidden the items instead of .leaving them out in the open.

The jury retired at 6:20 p.m. and at 8:50 p.m. the trial judge called the jury into the courtroom for a report on its progress. It retired again at 8:55 p.m., and at 9:25 p.m. returned with a verdict of guilty as charged.

I.

Did the lower court err in admitting evidence obtained during a warrantless search of appellant’s property?

Appellant contends that the officers violated his constitutional rights in going upon the garage premises and that the fruits of the search and seizure should have been suppressed.

The important question in considering this assignment of error is whether or not appellant’s garage was a public place. When Brown and his friend initially went to the garage, the doors were open, a mechanic was working inside, and the stolen articles were seen by them lying on the floor of the garage. Upon receiving that information, the officers went to the garage, the doors were still open, and they saw the articles lying on the floor of the garage, they talked with appellant, and then returned to the sheriff’s office with the stolen articles. Appellant followed them to the office in his own car.

The evidence shows that various people went to and from the shop for the purpose of doing business with appellant and, we hold that it was a public place. In Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967), the Court said: “What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection.”

In United States v. Various Gambling Devices, 478 F.2d 1194, 1200 (5th Cir.1973), the Court said:

The federal courts have consistently held that a law enforcement officer may enter commercial premises open to the public and observe what is in plain view. See Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

See also Campbell v. State, 278 So.2d 420 (Miss.1973).

We are of the opinion that the garage, being a public place, did not require a search warrant when Brown, his friend and the officers went to the place and saw the stolen articles on the floor, and that the officers had probable cause to arrest appellant. No further search was conducted at that time. After permission to search was voluntarily granted by appellant, the officers went back to the premises and conducted a thorough search which was not in violation of appellant’s constitutional rights. Therefore, the lower court properly admitted the evidence obtained from appellant’s garage.

II.

Did the lower court err in allowing testimony concerning appellant’s confession since it was the result of an illegal arrest and was given after appellant had exercised his right to remain silent?

Appellant argues here that the statement made by him should not have been admitted because it was obtained after an illegal arrest. We have held that the officers had probable cause to arrest appellant, that the search of the premises was proper, and that the evidence obtained was admissible. Much of that discussion is applicable to the assignment here. In Jones v. State, 358 So.2d 414, 416 (Miss.1978), the elements stated by the Court follow:

Two elements are necessary to establish probable cause in order to arrest an individual without a warrant: (1) determination that a felony has been committed, and (2) reasonable grounds to suspect and believe the person proposed to be arrested committed the felony. McCol-lum v. State, 197 So.2d 252 (Miss.1967); Clanton v. State, 242 Miss. 734, 137 So.2d 180 (1962).

Appellant contends that the testimony relating to his confession should have been suppressed because the statements were made after he had signed a form indicating his desire to remain silent. As mentioned hereinabove, when appellant was read the Miranda warnings, according to the officers, he, immediately, without any questioning from the officers, began to make a statement of his own volition. The statement was incriminating. Under the facts of this case, appellant waived his right to remain silent and it was not necessary for the officers to stop or interrupt appellant and give him the Miranda warnings a second time. Even when the officers asked questions, the answers were in response to the voluntary statement that was being made by the appellant. In McDougle v. State, 355 So.2d 1386 (Miss.1978), the Court cited Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), as follows:

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), clarified the scope of custodial interrogation and stated in that regard:
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.... (384 U.S. at 473-474, 86 S.Ct. at 1627-1628, 16 L.Ed.2d at 723.) (Emphasis added)
355 So.2d at 1388.

The McDougle Court went on to state:

The vast majority of federal and state courts has concluded the Miranda opinion does not create a per se proscription of further interrogation once the person being questioned has expressed a desire to remain silent. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). What Miranda apparently requires is cessation of interrogation when requested and if subsequently there is a reasonable basis for inferring that a suspect has voluntarily changed his mind, new and adequate warnings must be given. U.S. v. Collins, 462 F.2d 792 (2d Cir.1972) (en banc); cert. den., 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); U.S. v. Jakakas, 423 F.Supp. 564 (E.D.N.Y.1976). [355 So.2d at 1388].

In United States v. Hopkins, 433 F.2d 1041 (5th Cir.1970), addressing a similar question, the Fifth Circuit Court of Appeals stated:

There is no evidence that Hanley persisted in interrogating Hopkins despite his refusal to waive his constitutional rights. Nor is there evidence that Hopkins manifested inconsistent conduct because of confusion. See United States v. Nielsen, 7 Cir.1968, 392 F.2d 849. Rather, the record shows that Hopkins, after refusing to waive his rights and upon seeing Han-ley get up to leave, initiated the ensuing conversation in order to exculpate himself. The ensuing questions asked by Hanley were simply designed to pursue the line of inquiry begun by Hopkins. This case then resembles those instances where the accused voluntarily confesses prior to questioning. United States v. Welsh, 5 Cir.1969, 417 F.2d 361; Stone v. United States, 10 Cir.1967, 385 F.2d 713; Lamb v. Peyton, W.D.Va.1967, 273 F.Supp. 242. (Emphasis added) [433 F.2d at 1044].

See also United States v. Carpenter, 611 F.2d 113 (5th Cir.1980), cert. den. 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980); United States v. Perkins, 608 F.2d 1064 (5th Cir.1979); and United States v. Rieves, 584 F.2d 740 (5th Cir.1978).

III.

Did the lower court err in submitting an unwarranted “Allen” instruction?

After hearing the evidence, the jury retired at 6:20 p.m. and, at 8:50 p.m., the trial judge called the jury to the courtroom to obtain a report on its progress. The following exchange took place:

BY JUDGE BIGGERS: Ladies and gentlemen of the jury, I called you out to get a report from you. Have you not been able to arrive at a verdict yet?
BY JUROR: No, sir.
BY JUDGE BIGGERS: All right. What I tell you now does not change anything that I have already given you as far as instructions are concerned on what the law is and what your duties are, you certainly, as I have previously instructed you, you have a right to disagree. The issue in this case is simply a pretty simple issue, as counsel pointed out to you, both sides in their final arguments. It does not appear to be a complicated case; so, I think that you have had ample time to deliberate on this issue. I see no reason why you couldn’t return a verdict in this case one way or the other. I don’t think it’s the kind of case that is a complicated enough case that people would have difficulty understanding it. If you don’t agree, of course, we will have to keep the case on the docket and it will have to be done over again in another term of court, and be presented to another jury. But, I don’t see any reason why we would ever be able to get a better jury than this one to decide the case. As you have seen from being up here this week, this is a rather expensive process that we go through to get to where we are now; and, of course, expense is not the primary consideration, the main thing we are interested in is to see that justice is done. But, considering the simple issue involved in the case, I have no reason to believe we could ever get a better jury who would be able to resolve the issue than we have got now. So, I am going to ask you to retire and let me emphasize the previous instructions that I gave you and which were to the effect that you should freely and fully deliberate with each other with the end toward reaching the verdict in the case one way or another. I have no reason to believe that you can’t do that or shouldn’t be able to do that. All right, I am going to retire you back to the jury room and ask you to continue your deliberations.

In Coleman v. State, 350 So.2d 55 (Miss.1977), the lower court had the jury return to the courtroom, after a period of deliberation, and gave it an additional charge, which was similar to the statement made by the lower court here. In reversing the case, the Court cited Sharplin v. State, 330 So.2d 591 (Miss.1976), where the “Allen” charge was condemned, and the Court stated: “Following publication of this opinion, the ‘Allen charge’ in any of its various forms should not be given.” [350 So.2d at 57].

In the case sub judice, when the trial judge called the jury into the courtroom, he inquired whether the jury had been able to arrive at a verdict and then talked to it about the expense of trials, and the necessity of trying the case again, in the event the jury could not agree, and he complimented the jury on being a good jury. There was a complete departure from the procedure mandated in Sharplin v. State, supra.

Apparently, the defense attorney had no knowledge of what the trial judge intended to say, and he did all that he could do in that situation, viz, as soon as the jury returned to the jury room, he registered his objection and moved for a mistrial, which was overruled.

We are of the opinion that the statement by the trial judge was highly prejudicial, the jury having already deliberated for two (2) hours and thirty (30) minutes. Because of that error, the judgment of the lower court must be reversed and the case remanded for a new trial.

It is not necessary to address the other three assignments of error since they either are without merit or probably will not occur on retrial of the case.

REVERSED AND REMANDED.

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