author: SUGG, Justice,

text:
    STATE of Mississippi, Petitioner v. Darwin MAPLES, Judge, Respondent.
    Misc. No. 1224.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Michael C. Moore, Dist. Atty., Pascagou-la, for petitioner.
   SUGG, Justice,

for the Court:

ON PETITION FOR WRIT OF PROHIBITION

On June 23, 1981, a Jackson County Grand Jury returned fifteen (15) indictments which have been assigned numbers on the docket of the Circuit Court of Jackson County as follows:

No. 11,032, State v. Lum Cumbest
No. 11,033, State v. Lum Cumbest and Dale Coleman
No. 11,034, State v. Edward A. Khayat
No. 11,035, State v. Edward A. Khayat
No. 11,036, State v. Edward A. Khayat
No. 11,037, State v. Edward A. Khayat
No. 11,038, State v. Edward A. Khayat and Donald Cunningham
No. 11,039, State v. Edward A. Khayat and Frank Lynn
No. 11,040, State v. Edward A. Khayat and Anthony Watts
No. 11,041, State v. Edward A. Khayat, Ed McElroy, Lum Cumbest, Bill Roberts, Anthony Watts, Frank Lynn, Dale Coleman, and Donald Cunningham
No. 11,042, State v. Harry Krebs
No. 11,043, State v. Ed McElroy
No. 11,044, State v. Ed McElroy
No. 11,045, State v. Bill Roberts
No. 11,046, State v. Bill Roberts

On June 30,1981, the District Attorney of the Nineteenth Judicial District filed a motion in each case requesting the three circuit judges to recuse themselves from hearing these cases. On July 1, 1981, Judge Clinton Lockard filed an order recusing himself from all the cases. On July 17, 1981, the motions came on to be heard before Judge Darwin Maples. At the conclusion of the hearing, Judge Maples entered an order overruling the motions, and recommended that the State:

[Ajppeal from this decision and ask the Supreme Court at this time for a ruling on this matter. You can probably get a hearing within five (5) days on this. And I honestly and sincerely request that you do that, because I believe you should get a ruling on this matter and not delay it that much.

On July 29 the district attorney filed in this Court a Petition for Writ of Prohibition, supported by his brief and attached a transcript of the record of the July 17 hearing. The petition for writ of prohibition was heard by a panel of three judges on August 7 on the transcript of the record and oral argument by the district attorney. Judge Maples did not appear at the hearing and did not file a brief.

I.

The first question in this case is whether this Court may issue a writ of prohibition.

The writ of prohibition is of ancient origin, and as the name imports, is one which prohibits a judge or court from taking some action the judge or court is about to do in a legal action. Although the writ is generally referred to as a common law remedy, its issuance is governed by the equitable principle that there is no wrong without a remedy. Originally the writ was issued to prevent courts or tribunals from exercising jurisdiction with which they were not vested. However, the function of the writ has been extended to cover situations where, even though the inferior court has jurisdiction, the superior court deems it necessary and advisable to issue the writ to prevent some palpable and irremedial injustice. Planters Insurance Co. v. Cramer, 47 Miss. 200 (1872), 73 C.J.S. Prohibition §§ 1 and 2 (1951); 63 Am.Jur.2d Prohibition §§ 1 and 2 (1972).

The writ has also been issued to restrain a judge from proceeding in a case in which he is disqualified to sit. Peters v. Jamieson, 48 Haw. 247, 397 P.2d 575 (1964); Cooper v. Howard, 267 Ky. 287, 102 S.W.2d 18 (Ky. 1937); 73 C.J.S. Prohibition § ll(i) (1951); 63 Am.Jur.2d Prohibition § 27 (1972).

However, in Wynne v. Railroad, 105 Miss. 784, 66 So. 410 (1914) and Planters Insurance Co. v. Cramer, 47 Miss. 200 (1872), this Court held that a writ of prohibition can only be issued by a court of original jurisdiction, holding such jurisdiction in the Supreme Court was excluded by Section 146 of the Constitution of 1890 and Section 4, Article 6 of the Constitution of 1869.

In Wynne, the circuit judge had entered an order requiring the defendant to have certain of its books, papers, and documents available for inspection by the plaintiffs on a specified date to allow the plaintiffs a reasonable time within which to make an inspection and such copies as they desired. The defendant Railroad Company filed a petition in this Court in which it alleged that the order was void because the circuit judge exceeded his authority in making it, and sought the writ to prohibit the circuit judge from enforcing the order granted by him.

In Planters Insurance Company, the circuit judge of Warren County had overruled a motion to transfer the suit to Hinds County. The defendants sought a writ to prohibit the circuit judge of Warren County and the plaintiffs in the suit from proceeding with a trial in Warren County, contending the Circuit Court of Warren County did not have jurisdiction of the case.

In both cases this Court declined to issue the writs, holding it did not have the authority to issue the writs. This holding was obiter dictum in both cases because the errors complained of could have been preserved for review on appeal after a trial of the cases.

It should be noted at this time that this Court has announced a different rule pertaining to writs of mandamus by holding that the Supreme Court has original jurisdiction to entertain a writ of mandamus to compel a trial judge to act in a matter pending before him. This principle has an important bearing on the question under consideration because of the similarity between writs of mandamus and writs of prohibition. The writs are similar in that both are remedial writs and may be issued only by a superior court to an inferior court; one compels action, the other prohibits action.

In Boydstun v. Perry, 249 So.2d 661 (Miss.1971), appellant filed a petition for a writ of mandamus in the Circuit Court of Newton County to require the circuit judge of an adjoining circuit court district to set for trial, and try, two civil cases in which appellant was attorney for the plaintiff. We affirmed the dismissal of the petition for a writ of mandamus, holding:

Where duties are imposed on a judge of a court as an officer, another judge of coordinate jurisdiction and power is without jurisdiction to issue a mandamus to compel performance of such duties, for the reason that the writ issues only from a superior to an inferior court. (249 So.2d at 663)
Only in a case of the clearest abuse of judicial discretion would a circuit judge’s actions with respect to the docket settings in his court be subjected to control by mandamus. In such an event, that is, in a case in which the clearest abuse of judicial discretion is shown to exist, original jurisdiction of the proceedings must necessarily rest with this Court, although factual questions might be heard by a specially designated trial judge appointed by this Court to act as the trier of facts. (249 So.2d at 664)

Moreover, in Woods v. Lee, 390 So.2d 1010 (Miss.1980), we held that the remedy of a plaintiff, where he had filed a motion for judgment notwithstanding the verdict, and where the trial judge had neither ruled on nor entered an order on the motion after taking it under advisement, was by writ of mandamus to compel the trial judge to rule on the motion rather than by appeal under section 11-1-17 Mississippi Code Annotated (1972).

Appellant’s remedy was by writ of mandamus to compel the trial judge to rule on the motion rather than by appeal. We therefore dismiss the appeal and remand the case for further proceedings. (390 So.2d at 1012)

Although we did not state in Woods that the mandamus could only be issued by this Court, this is implicit in the decision because the writ issues only from a superior to an inferior court and because a judge is without jurisdiction to issue a mandamus against another judge of coordinate jurisdiction and power.

In Cohens v. Virginia, 6 Wheat. [U.S.] 264, 5 L.Ed. 481 (1821), the United States Supreme Court, speaking through Chief Justice Marshall, stated:

[A] writ of prohibition, or any other similar writ, is in the nature of appellate process. (6 Wheat, at 397, 5 L.Ed. at 289)

The above statement summarizes the true function of a writ of prohibition, namely, the writ may issue as an aid to the appellate process by superior courts to inferior courts to prevent action by an inferior court or judge which cannot be remedied on appeal.

It has been settled by prior decisions that the Supreme Court has original jurisdiction to issue a writ of mandamus to an inferior court. We see no logical reason for a different jurisdictional rule to apply to a writ of prohibition because both writs are remedial in nature, both writs may only be issued by a superior court to an inferior court, and the function of both writs is to aid in the appellate process. The writ of mandamus is an aid to the appellate process because a superior court directs an inferior court totake some affirmative action so the action of the inferior court may be reviewed on appeal. A writ of prohibition is an aid to the appellate process by preventing action by an inferior court or judge which cannot be remedied on appeal.

Therefore, we decline to follow the dictum in Wynne and Planters Insurance Co. and overrule those cases to the extent that they hold the Supreme Court does not have original jurisdiction to issue a writ of prohibition. We now hold the Supreme Court has original jurisdiction to issue a writ of prohibition.

II.

Having determined that we have original jurisdiction to entertain a petition for writ of prohibition, the next question is whether this is a proper case in which to exercise this jurisdiction.

After hearing the motions, the circuit judge declined to recuse himself. The overruling by a circuit judge of a motion to require him to vacate the bench is an interlocutory order, and ordinarily the Supreme Court will not review his action in an original proceeding here, since the petitioner may have the ruling reviewed on appeal. However, in a criminal case the State is without adequate remedy by appeal if the trial judge has erroneously refused to vacate the bench because if there is a verdict of acquittal or a directed verdict, the defendant in the criminal case may not be tried again because of the double jeopardy provisions of the Constitutions of the United States and the State of Mississippi. The inability of the State to have the error corrected on appeal takes the case out of the rule that the Supreme Court is without jurisdiction to review such an order in an original action for writ of prohibition. We hold this is a proper case to review the action of the trial judge in an original action for a writ of prohibition.

The rule announced in this case will not apply to plaintiffs or defendants in civil cases, or defendants in criminal cases, where the judge is requested to recuse himself, because such parties may have the ruling of the trial judge reviewed on appeal.

III.

The final question is whether the writ of prohibition should issue.

The petition for writ of prohibition in this case was accompanied by copies of the motions filed in the Circuit Court of Jackson County, a transcript of the record of the hearing, a copy of the final order of the circuit judge, and brief of the district attorney. Oral argument was made by the district attorney at the hearing in this Court. The circuit judge did not file a brief. Failure of the circuit judge to file a brief will be treated as any other appellee who fails to file a brief. The rule is that failure of appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error. Burt v. Duckworth, 206 So.2d 850 (Miss.1968). Also, cases cited in Mississippi Digest, Key Number 770(1). After considering the record and brief in this case, we cannot say with confidence that there was no error.

Accordingly, the decision of the trial court is reversed, and a writ of prohibition will issue from this Court prohibiting Judge Darwin Maples from hearing the cases pending in the Circuit Court of Jackson County assigned docket numbers 11,032 to 11,046, both inclusive.

PETITION FOR WRIT OF PROHIBITION GRANTED.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Guardianship of Angela BROWN and Chelsa Brown, Minors. Jeanette BROWN v. Joella Brown ROBINSON.
    No. 52711.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Don H. Evans, Jackson, for appellant.
    Samuel H. Wilkins, Mary Lou Payne, Wilkins, Ellington & James, Arthur G. Gearheard, III, Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

On a petition to dissolve a general guardianship, the Chancery Court of the First Judicial District of Hinds County entered a final decree holding: (1) Jeanette Brown was the only living parent of her two minor children, Angela Brown and Chelsa Brown, (2) Jeanette Brown was a suitable person to have the custody of her two children, and the custody of the children should be immediately awarded to her, (3) Joella Brown Robinson, the paternal grandmother of the children, should have the right of visitation with the children on the third weekend of each month, (4) the general guardianship should be partially dissolved by removing Joella Brown Robinson as general guardian of the person of the children but Joella Brown Robinson should remain as guardian of the estate of the children.

Appellant, Jeanette Brown, appealed and argues the trial court erred when it granted visitation rights to appellee and by retaining appellee as the guardian of the estate of the children.

Appellant married Sgt. Leroy Brown, the son of appellee, and two children were born of this union. The children were Angela Brown, born March 30, 1974, and Chelsa Brown, born August 14, 1975. Appellant and her husband were both serving in the United States Air Force and were stationed at Chanute Air Force Base, Illinois. On December 4, 1979, appellant and her husband were involved in a domestic quarrel in which the husband was killed. Appellant was arrested, charged with murder, and incarcerated until her trial on April 21, 1980. Appellant was found guilty of negligent homicide. She received a bad conduct discharge, forfeiture of all pay and allowances, but was not sentenced to imprisonment.

Immediately after appellant was arrested, she called her parents, Willie C. and M. L. Darby' and requested them to come to Illinois and assume custody and control of her children while she was incarcerated. On December 6, 1979, she executed a power of attorney to her parents authorizing them to take custody and control of her children and “to perform any and all necessary acts to ensure the general well-being of said children.” Appellant’s parents picked up the children in Illinois and returned with the children to their home in Hinds County, Mississippi.

Appellee filed a petition to be appointed general guardian of the children on December 14, 1979, and process by publication was served on the appellant returnable on the second Monday of January, 1980, the first day of the January, 1980 term of Chancery Court.

Appellant filed a motion for continuance claiming benefit of the Soldiers and Sailors Civil Relief Act, and also on the ground that she had placed the children in the custody of her parents and who were suitable to have custody of the children. On January 17, 1980, the court entered its decree appointing appellee as general guardian of the children.

On May 5, 1980, soon after her release, appellant filed a petition to dissolve the general guardianship and to restore custody of the children to her. She filed an amended petition and the matter was heard on July 17, 1980, resulting in the decree appealed from.

Appellant’s first assignment of error is that the trial court erred by granting visitation rights to appellee. In Naveda v. Ahumada, 381 So.2d 147 (Miss.1980), we held the trial court erred when it granted visitation rights to grandparents after awarding custody to the mother. In Naveda, we stated:

In 67A C.J.S. Parent and Child § 41(c), at 296 (1978), the general law is stated as follows:
“Generally, where custody of a child has been awarded to a fit parent, grandparents and third persons are not entitled to visitation privileges. Grandparents have no common-law right to visitation; their rights are derivative through the natural parent, and any obligation of a custodial parent to permit visitation of a grandchild by the grandparent is a moral obligation and not a legal right.”
In 59 Am.Jur.2d Parent and Child § 45 at 130 (1971), it is stated:
“The right of visitation derives from the right of custody and is controlled by the same legal principles. Thus, as in custody cases, the best interest and welfare of the child is the controlling consideration.... But where an award of custody to a nonresident or a person about to leave the jurisdiction has been determined upon, this conclusion has not been affected by the fact that the visitorial rights of the other parent would thereby be impaired or destroyed, since visitorial rights must give way when in conflict with the child’s welfare.
Parents who have custody have the right to determine with whom the child will associate. Accordingly, where a parent or parents have custody, the courts will not undertake to give visitation rights to a nonparent — a grandparent, for example — over the parents’ objection.” (381 So.2d at 149, 150)

The trial court held that appellant was a suitable person to have custody of her children and appellee has not challenged this finding of the trial court. Accordingly, we follow the rule announced in Naveda and hold the trial court erred when it granted visitation rights to the appellee.

Appellant also contends that the trial court erred by retaining appellee as the guardian of the estate of her children. Section 93-13-1 Mississippi Code Annotated (1972) provides that the father and mother are the joint natural guardians of their minor children and if either the father or the mother dies, the guardianship devolves upon the surviving parent. There is no evidence that appellant is not suitable to serve as guardian of the estate of her children; therefore, we hold the chancellor erred by retaining appellee as guardian of the estate of the children.

We reverse, discharge appellee as guardian of the estate of the children, and appoint appellant as guardian of the estate of her children upon her filing bond and oath as required by statute. Appellee shall file a final account within fifteen (15) days following the date the mandate of this Court is filed in the trial court.

REVERSED AND RENDERED.

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

      . Negligent homicide has been defined as “unlawfully causing the death of another by simple negligence — that is, an act or omission not negligent to such a degree as to justify a charge of voluntary manslaughter — but nevertheless one which exhibits a lack of that degree of care for the safety of others which a reasonably prudent person would have exercised under the circumstances.” (Military Law Under the Uniform Code of Military Justice. Aycock — Wurfel (1972) at page 309) See also United States v. Kirchmer, U.S.C.M.A. 477, 4 C.M.R. 69 (1952).

      . The maximum punishment for negligent homicide is a bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor not to exceed one year. MCM, 1969 (Rev.) Ch. XXV Par. 127c(6) Table of Maximum Punishments.


author: BOWLING, Justice, for the Court:

text:
    HOME LIFE INSURANCE COMPANY v. Mary Joyce CHANDLER.
    No. 52634.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Richard T. Lawrence, Watkins & Eager, Jackson, for appellant.
    Morris C. Phillips, Jr., Carthage, for ap-pellee.
    Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
   BOWLING, Justice, for the Court:

Appellant Home Life Insurance Company brings this appeal from the Circuit Court of Leake County where a jury verdict and judgment thereon was entered for appellee Mary Joyce Chandler (plaintiff below) in the sum of $9,999.00.

Appellee’s alleged claim was for benefits due because of the death of her husband, Clyde C. Chandler. The deceased at the time of his death and prior thereto was an employee of Olen Burrage Trucking, Inc., whose home office was in Philadelphia, Mississippi. The principal business of this company was operating transportation trucks with Chandler being one of the drivers. As of May 31,1972, appellant Home Life issued to Chandler’s employer, Olen Burrage Trucking, Inc., a policy of insurance to cover hospital, medical, death and other incidental benefits by employees of Burrage.

Chandler died on June 23,1978. Appellee filed a claim for death benefits allegedly due under the group policy. Appellant denied that appellee’s claim was within the terms of the group policy and affirmatively alleged that the claim was specifically excluded for reasons hereinafter set out. The death benefit, if owed, was in the sum of $10,000. Appellee filed her suit in the Circuit Court of Leake County for $9,999. The jury returned a verdict in the latter amount and a judgment was entered thereon.

Appellant assigns a number of alleged errors on appeal. It is necessary to consider only one assignment, as it disposes of the appeal. This contention is that at the conclusion of all the evidence the lower court should have granted a peremptory instruction. We are forced to agree with this contention and to reverse and render judgment here for appellant.

The affirmative defense of appellant was that the application of Chandler to come under the group policy was made more than thirty-one days after his employment with Burrage and that he could not have been eligible for coverage under the policy without furnishing evidence of insurability. This required evidence would have been in the form of a medical examination and a form completed by a physician of Chandler’s choice.

Witness Mrs. Beverly Durant was the employee of Burrage who handled the group insurance coverage for her employer. She had been doing this for approximately two years and the insurance work consumed approximately one day each week. Prior to Mrs. Durant handling the insurance matters, it was done by Mrs. Olen Burrage. Mrs. Durant testified that she did not know about the so-called “late entrant” requirements and she thought that the only requirement was a waiting period of thirty days after an employee applied, regardless of the length of prior employment.

Chandler came to the office on April 15, 1978, and completed a “group insurance enrollment card” with the assistance of Mrs. Durant. Under the information requested as to “date of permanent full-time employment” there was inserted the date of “4/15/78.” Mrs. Durant testified that she informed Chandler on that date that he would have to wait thirty days. The enrollment card reveals that it was signed on May 15, 1978, and it was Mrs. Durant’s opinion that she was then obligated to forward the card to the appellant who would then include Chandler as a covered employee. This was done and a certificate was returned to be attached to policy coverage information and delivered to Chandler. Pursuant to the information on the enrollment card, appellant enrolled Chandler as a covered employee and Chandler admittedly received the coverage information booklet.

The group policy, in describing Burrage’s employees who could elect to be covered under the policy, provided that any employee could be covered but that:

(c) If such request is made by the employee more than thirty-one days after he becomes eligible or is made after previous termination of his insurance because of failure to make a required contribution, the employee must furnish, at his own expense, evidence of his insurability. If such evidence is submitted, his insurance for which he is then eligible shall become effective on the date Home Life approves the employee’s evidence of insurability.

The coverage information given to the employee who applied for such coverage, including Chandler, expressly set out the above requirement. It was stipulated that Chandler had been employed more than thirty-one days prior to April 15, 1978. In fact, the proof shows that he had worked continuously since August 1976 and for various periods of time prior to that date.

Chandler’s physical condition at the time the enrollment card was executed is undisputed. For many years he had had a serious heart condition and had had a bout with malignancy and operations for that ailment. His health, unfortunately, was extremely bad. He had been plagued by high blood pressure for a long period of time. On April 7, 1978, shortly prior to completing the enrollment card, there was a growth removed from Chandler’s back which proved to be malignant.

We think it appropriate to state that had Chandler started to work and begun his employment with Burrage on April 15, 1978, the date placed on the enrollment card, he would have received full coverage and full benefits under the group policy regardless of his physical condition. The sole question as hereinbefore stated is that due to the fact he had been employed more than thirty-one days, he could not be covered without evidence of insurability under the terms of the policy.

Appellee contended below and contends here that Mrs. Durant [the employer’s representative] was acting as agent of appellant Home Life and that the action of Bur-rage through Mrs. Durant was binding on appellant. Appellant contends that Bur-rage was not its agent, but on the other hand Burrage was required to follow the instructions and directives of appellant in regard to enrolling employees under the group plan.

The threshold question therefore appears to be whether or not as a legal proposition the employer under the group plan, such as the one involved here, is an agent of the insurance company and can waive or alter coverage requirements, as the one involved in this appeal. Research reveals that there is a diversity among jurisdictions on this agency question. The majority of jurisdictions appear to hold that the employer is not the “agent” of the company. There are a number of jurisdictions in the minority that hold the employer is the agent of the company and any action of the employer binds the company. It appears that this Court has never spoken directly to this legal question, although several cases have touched on the subject. We find that it is not necessary to reach a definite decision on this question on the appeal before us. As is usually the case, such questions are considered on a case by case basis because of the wide divergence of facts in each case. In our opinion the evidence in the record before us is sufficient to require a holding that Chandler did not become a covered employee and it was against the overwhelming weight of the evidence for the lower court to fail to grant appellant a peremptory instruction.

As hereinbefore stated, Mrs. Durant denied any knowledge of Burrage Trucking Company through her of the late entrant requirement. Appellant introduced the testimony of witness Michael Duran. He was a senior group underwriter for appellant and testified in detail regarding the type of policy in question and the manner in which it operated through the various covered employers and their employees. The policy in question was one where the employees made a contribution along with the employer. He testified that the employer Burrage was fully advised as to the late entrant requirement and why this requirement is placed in such policies. The employees contributed approximately sixty percent of the premium and the premium at the end of each year was reevaluated according to the loss experience. The employees who were covered properly should not have to be exposed to a loss that did not fall within the terms of the policy. Duran further testified the company had notified Burrage of the late entrant requirement in 1976 concerning two employees. At that time, according to Mrs. Durant, Mrs. Burrage was handling the insurance. Mrs. Burrage did not testify and her knowledge about this provision is not shown in the record. We have only the statement of Mrs. Durant that Mrs. Burrage did not tell her about the requirement on employees already working more than thirty-one days. Of course, the reason for the requirement is obvious. It is to prevent exactly what happened here. We have all possible sympathy for Chandler and his widow, but the requirement we are talking about is to prevent an employee, who has not seen fit to contribute his portion of the premium and come under the group plan during the course of his employment and then decides to do so after his health condition develops into that of Chandler at the time he enrolled. As heretofore stated a new employee could enroll within thirty-one days, even if his health was in the same condition as Chandler’s.

Mr. Duran’s testimony is clear in the record and evidences forthright information regarding the operation and method of handling group insurance policies and claims. His explanation as to why this particular claim was not covered under the policy is clear and without any conflict. It is possible that the jury’s verdict was influenced in part by the trial judge stating before the jury during Duran’s testimony that he had “listened to testimony I do not believe.” Of course, it is not necessary to discuss the impropriety of a trial judge doing such, although without objection.

After Chandler’s death on June 23, 1978, the first premium for him being included under the policy was forwarded to the company on July 25, 1978. This premium was returned upon the company’s representative learning of the violation of the late entrant requirement. On July 21, 1978, a claim form under the signature of Brenda Johnson, bookkeeper, was completed and this form showed April 15, 1978, as Chandler’s “date employed.” On September 6, 1978, another claim form was prepared by the above mentioned Mrs. Durant and it showed the date employed as April 15,1978.

As heretofore stated, the primary question is whether or not the admitted act of the employer in erroneously completing the enrollment card was binding on appellant. Research reveals divided authority on the question of the extent of the agency relationship between the insurer and the employer in employee group insurance policies. We emphasize that we do not make that decision here, as it is not necessary to do so in this appeal. We think, however, that we should point out the contentions of the parties on this question. The basic case on the admitted now majority rule that the employer is not the insurer’s agent is set out in Boseman v. Connecticut General Life Ins. Co., 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036 (1937), where the Supreme Court stated as follows:

When procuring the policy, obtaining applications of employees, taking payroll deduction orders, reporting changes in the insured group, paying premiums and generally in doing whatever may serve to obtain and keep the insurance in force, employers act not as agents of the insurer but for their employees or for themselves.

The above pronounced principle has been adopted in various jurisdictions appearing to be in the majority. A number of states, however, have affirmatively held and have given good reasons therefor that the employer in doing the insurer’s work is acting as the insurer’s agent and the insurer waives any erroneous action by the employer. Elfstrom v. New York Life Ins. Co., 67 Cal.2d 503, 63 Cal.Rptr. 35, 432 P.2d 731 (1967).

Other states following the California Court in adopting the so-called minority rule include: Colorado, Georgia, Illinois, Iowa, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, West Virginia, and Alabama.

The principal Mississippi case touching on the legal issue being discussed is Magee v. Sun Life Assurance Co., 182 Miss. 287, 180 So. 797 (1938). A close examination of that case, however, reveals that as in almost all cases involving such questions, a distinction may be drawn. In Magee the Illinois Central Railroad Company carried a group policy with Sun Life Assurance Company with both disability and life benefits. Magee was an employee who enrolled under the group policy. Magee died and his widow called on the assurance company to pay her the $2,000 in death benefits. The opinion states that this claim was made against Zurich’s General Accident and Liability Insurance Company, but does not explain understandably the reason for the different companies. Magee had become ill several months prior to his death and was no longer carried by the Illinois Central Railroad Company as an employee. Magee’s widow contended that Magee had tendered the premium to the railroad company, who refused to accept it; therefore, the insurer was bound. During the course of the opinion the court did say that “the assurance company did not look to him [Magee] for the payment of the premium, but to the railroad company, between whom no relation of principal and agent exists, and the assurance company was obligated to accept premiums when, but not unless, tendered it by the railroad company, and had the right to cancel the insurance when notified by the railroad company so to do.” When analyzed with the rest of the opinion, we do not find that this is a positive holding that this jurisdiction under a proper case would follow the majority rule set out above.

This Court has held that a bank or other similar agent under a policy of credit life insurance is the agent of the company. Again, it is clear that the reason for this is that the insurer makes the lending institution its agent and empowers that institution with all elements of agency that binds the insurer. Gulf Guaranty Life Ins. Co. v. Kelley, 389 So.2d 920 (Miss.1980); Seymore v. Greater Miss. Life Ins. Co., 362 So.2d 611 (Miss.1978); and Gulf Guaranty Life Ins. Co. v. Middleton, 361 So.2d 1377 (Miss.1978).

As stated, we are of the opinion that it is not necessary for this Court now to make a choice between the opposite position held by the various states on the question being discussed. We are of the opinion that each case should stand on its own base. The facts of all are different. In the present case, there is practically no dispute as to what occurred. Admittedly, the deceased did not conform to the “late entrant” requirement of the group policy. The reason for that requirement as hereinabove stated is obvious. The testimony is uncontradicted that proper instructions for enrolling employees were furnished the employer. There had been two instances of late entrants that had been called to the employer’s attention. The only explanation given by the employer’s employee, who handled the insurance, was that the requirement was unknown to her personally. This in our opinion is not sufficient to overcome the other positive and uncontradicted evidence. We therefore hold that the lower court was in error in failing to grant appellant a peremptory instruction for the reason that the evidence was not sufficient for the jury to find that the employer was an agent of the insurer clothed with the power to waive the late entrant requirement.

REVERSED AND JUDGMENT RENDERED HERE FOR APPELLANT.

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


author: LEE, Justice, for the Court:

text:
    James HARBIN and Willie White v. STATE of Mississippi.
    No. 52779.
    Supreme Court of Mississippi.
    Aug. 19, 1981.

      Leon E. Provine, Grenada, for appellants.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice, for the Court:

James Harbin and Willie White were jointly indicted, tried and convicted in the Circuit Court of Grenada County on a charge of grand larceny and each was sentenced by the court to a term of three years in the Mississippi State Penitentiary. They have appealed and assign four errors in the trial below.

The appellants contend that the court erred in declining to direct a verdict of not guilty at the conclusion of the state’s evidence. When that motion for a directed verdict was overruled, the appellants proceeded with their defense and introduced evidence. It is elemental that, in so doing, they waived the contention. However, when all parties rested, they renewed their motion for a directed verdict and, since they have assigned as error that the verdict was against the overwhelming weight of the evidence and that appellant Willie White should have been discharged, we treat all assignments of error as presenting the sole question here as to whether or not the court erred in declining to grant a verdict of not guilty for the appellants at the end of all the evidence and whether or not the verdict of the jury was contrary to the overwhelming weight of the evidence.

The evidence favorable to the state indicates that on the night of June 18, 1980, Randy Aron was driving his 1967 Chevrolet automobile on Interstate 55 near Holcomb, Mississippi, when the vehicle developed engine trouble and stopped. Aron took the license plate off of the automobile, placed it inside, locked the doors and left the car on the side of the highway. The next day, James Harbin and Willie White were traveling on the interstate highway in Harbin’s automobile. They picked up Donnie Jones, who sought a ride to town. When Harbin arrived at the place where Aron’s automobile had been left, he stopped and placed a chain on the rear of his automobile and asked Donnie Jones to hook it to the Aron vehicle, telling him that the vehicle was the property of Willie White. Donnie Jones refused to put the hook on the Chevrolet automobile, whereupon Harbin hooked the chain to it. White broke the glass out of the Chevrolet on the driver’s side and got into the vehicle. Harbin began to tow the vehicle and had moved it approximately three feet when Randy Aron’s sister, Sherry Aron, drove up and saw them towing the automobile. The appellants then unhooked the chain and sped away, leaving Donnie Jones at the scene.

Appellants contend that their actions about the vehicle only amounted to an attempt to steal the same and that there was no asportation (carrying away) of the Aron vehicle.

In 3 Wharton’s Criminal Law, Larceny, section 378 (1980), the applicable legal principle is stated as follows:

To constitute larceny, there must be— in addition to a taking or caption — a carrying away or asportation of the property of another. There is a caption when the defendant takes possession; he takes possession when he exercises dominion and control over the property. There is an asportation when he carries away the property; any carrying away movement, however slight, even though it takes but a moment, is sufficient. Given an aspor-tation, a larceny is committed even if the defendant for whatever reason abandons the property, or even if, because he is detected, his purpose in carrying away the property is frustrated.

Miss.

There can be an asportation even if the property is not removed from the owner’s premises. Thus, if the movement of property is a “carrying away” movement, it qualifies as an asportation if the property is moved merely from one part of the owner’s premises to another, or even if the property is moved from one place to another in the same room. (3 Wharton’s Criminal Law, § 378 at 360-362).

In Delk v. State, 64 Miss. 77, 1 So. 9 (1886), Delk was convicted of the larceny of a jack (animal). He removed the jack from a stable for a distance of ten to fifteen steps and then killed the animal. The Court said:

The doctrine is well settled in this state that it is not necessary to constitute larceny that the taking should be lucri causa. A fraudulent taking and removal of the personal property of another, with intent to wholly and permanently deprive the owner of the same, is larceny. Warden v. The State, 60 Miss. 638; Hamilton v. The State, 35 Miss. 214; 2 Bish. Crim.L., § 758; Williams, etc. v. The State, 52 Ala. 411.
It was not necessary that the animal stolen should have been removed from the premises of the owner. To remove him with the requisite felonious intent from one part of the premises to another, or from the spot or house where he was found, was a sufficient asportation. (64 Miss. at 80, 1 So. at 9-10).

See Mapp v. State, 248 Miss. 898, 162 So.2d 642 (1964).

We are of the opinion that the facts of this case presented a guilt issue for the jury as to both appellants, that the lower court correctly refused to grant a directed verdict of not guilty for them, and that the verdict of the jury is not against the overwhelming weight of the evidence. Warn v. State, 349 So.2d 1055 (Miss.1977).

AFFIRMED.

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


author: BOWEN, Judge.

text:
    Johnny James KNIGHTEN v. STATE.
    4 Div. 859.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    L. Merrill Shirley, Elba, for appellant.
    Charles A. Graddick, Atty. Gen. and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

In the early morning hours of May 5, 1979, the defendant brutally beat and killed his wife. The defendant was indicted and convicted for murder in the first degree. Sentence was life imprisonment.

I

The defendant’s argument that the State failed to lay the proper predicate for the admission of his confession into evidence is not supported by the record. Time and time again the words “or anyone in your presence” were included in the predicate-laying questions. C. Gamble, McElroy’s Alabama Evidence, Section 200.02(3), n. 3 (3rd ed. 1977). Additionally, there was never any proof that the District Attorney was actually present during a portion of the questioning.

Although proof of the corpus de-licti should be introduced before admitting the defendant’s confession, the error is cured by its introduction after the admission of the confession. Floyd v. State, 82 Ala. 16, 2 So. 683 (1886). To prove the corpus delicti in a murder prosecution “the State does not have to negative beyond a reasonable doubt that the death did not result from accident, suicide, or natural causes, but it is required to show only a reasonable probability that a criminal act of another was the cause of death.” McElroy, Section 200.13. The corpus delicti may be proved by circumstantial as well as direct evidence. Watters v. State, 369 So.2d 1262, 1272 (Ala.Cr.App.1978), reversed on other grounds, 369 So.2d 1272 (Ala.1979).

II

Defendant’s requested charge number 20 was properly refused. It was condemned in George v. State, 240 Ala. 632, 638, 200 So. 602 (1941), as being “a clear violation” of what is now Section 12-16-11, Alabama Code 1975, in that it invaded the province of the jury because it stated that there was no evidence of certain facts. See also White v. State, Ala.Cr.App., 6 Div. 492 (Ms. June 23, 1981). Statements of law in judicial opinions, especially when taken out of context, are not always proper for jury instructions in other cases. Magro v. State, 384 So.2d 871 (Ala.Cr.App.), cert. denied, 384 So.2d 875 (Ala.1980).

III

Although the defendant has a right to have questions answered truthfully on voir dire examination of the venire, the failure of a juror to make a proper response to a question regarding his qualifications to serve as juror does not automatically entitle the defendant to a new trial. The proper inquiry is whether the defendant’s rights were prejudiced by the juror’s failure to properly and correctly respond. Beauregard v. State, 372 So.2d 37, 41 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979).

Here the undisputed evidence shows that juror Cecil Caldwell did not learn that the Dunk and Mary Alice Muskgrove he knew were the parents of the victim until after the trial was completed. He further testified that his acquaintance with Mr. and Mrs. Muskgrove did not influence his judgment and verdict in any manner. We note that in his voir dire examination of the jury defense counsel did not mention the names of the parents of the deceased. We find that Mr. Caldwell’s failure to disclose his acquaintance with the decedent’s family did not and could not have prejudiced the defendant.

We have searched the record and found no error. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice.

text:
    William Thomas ZEIGLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 50355.
    Supreme Court of Florida.
    June 11, 1981.
    Rehearing Denied Sept. 18, 1981.

      H. Vernon Davids of the Law Offices of H. Vernon Davids, Winter Garden, for appellant.
    Jim Smith, Atty. Gen. and Richard W. Prospect and Gregory C. Smith, Asst. Attys. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is an appeal from two judgments of murder in the first degree, two judgments of murder in the second degree, two sentences imposing the death penalty and two sentences of life imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

On Christmas Eve, December 24, 1975, Eunice Zeigler, wife of defendant (hereinafter referred to as wife), and Perry and Virginia Edwards, parents-in-law of defendant (hereinafter referred to as Perry and Virginia), were shot to death in the W. T. Zeigler Furniture Store in Winter Garden, Florida. In addition, Charles Mays, Jr., (hereinafter referred to as Mays), was beaten and shot to death at the same location. Times of death were all estimated by the medical examiner as within one hour of 8:00 P.M. The defendant was also shot through the abdomen.

The state’s theory of the case may be summarized as follows:

Edward Williams had known defendant and his family for a number of years. Williams testified that in June 1975 defendant inquired of him about obtaining a “hot gun.” Williams then went to Frank Smith’s home and arranged for Smith to purchase two RG revolvers. The revolvers were delivered to defendant. Also, during the latter part of 1975 defendant purchased a large amount of insurance on the life of his wife. Thus was shown the means and the motive.

Mays and his wife came to defendant’s furniture store during the morning of December 24 and Mays agreed to meet defendant around 7:30 P.M. The store was closed around 6:25 P.M.

Mays left his home around 6:30 P.M. He went to an Oakland beer joint and saw a friend, Felton Thomas, who accompanied Mays to the Zeigler Furniture Store.

The theory of the state’s case is that defendant had two appointments on Christmas Eve, one with Mays and one with Edward Williams. Prior to these appointments he took his wife to the store and in some manner arranged for his parents-in-law to go there. He killed his wife, Eunice, quickly, and for her, unexpectedly, since she was found with her hand in a coat pocket, shot from behind.

Because of the location of her body, Virginia was probably trying to hide among the furniture. Perry probably surprised defendant with his strength and stamina as they struggled for some time. After defendant subdued Perry and rendered him harmless, defendant shot him. Considering the fact that a bullet penetrated Virginia’s hand, the state said it was likely she was huddled in a protective position when she was executed.

Defendant then left the store, returning to meet with Mays who had arrived there at about 7:30. He was probably surprised to see the presence of another man, Felton Thomas, with Mays. He took Thomas and Mays to an orange grove to try the guns. The state says that the purpose of the trip was to get the two to handle and fire the weapons in the bag. From the grove he returned to the store, but was unsuccessful in getting Mays or Thomas to provide evidence of a break-in. He did, however, get Thomas to cut off the lights in the store. The three returned to defendant’s home. Defendant got out, went to the garage, came back and took a box of some kind to Mays and told him to reload the gun. They returned to the store. Defendant could not persuade Thomas to enter the store, so Thomas lived. When Thomas disappeared, the defendant returned to his home and picked up Edward Williams. Defendant had killed Mays.

Defendant was successful in getting Williams partially inside the back hallway. Defendant put a gun to Williams’ chest and pulled the trigger three times, but the gun did not fire. Williams said, “For God’s sake, Tommy, don’t kill me,” and ran outside, refusing to return to the store. The state says that the empty gun was as much a surprise to defendant as it was to Williams. The state says that in all probability defendant thought he was holding the gun that Mays had shot in the orange grove and which defendant told Mays to reload.

When he was unable to get Williams into the store, the defendant became desperate and conceived the idea that he would appear uninvolved if he happened to be one of the victims. Accordingly, he shot himself and then called Judge Vandeventer’s residence where he knew the police officers would be.

The defendant denies that he had any contact with Smith or purchased any guns from him. He says that the increase in the amount of the insurance policy was pursuant to advice on an estate plan. Defendant says that his wife, Perry, and Virginia were killed during the course of a robbery; that Mays was involved in the robbery but was killed by his confederates; that he was shot by the burglars and left to die. The jury obviously did not believe the testimony of the defendant. To have believed his story, the jury would necessarily have had to disbelieve the testimony of Smith, Thomas, and Williams and would have had to have found no significance in the other substantial evidence.

We have carefully examined the extensive record and find that there was substantial evidence upon which the jury verdict could be based, and we find that the evidence was sufficient to sustain the verdict.

The defendant was arrested in his hospital room on December 29, 1975, a preliminary hearing was held January 16, 1976, and the grand jury returned indictments on March 26, 1976. One indictment charged defendant with three counts of first degree murder for the shooting deaths of Eunice Zeigler, Perry Edwards and Virginia Edwards. Another indictment charged defendant with one count of first degree murder for the beating death of Charles Mays, Jr.

An order was filed by the trial court on April 1, 1976, wherein the court advised counsel of his desire to consolidate the two indictments for trial. This order contained the following:

Based upon representations and discussions between the Court and the Attorneys involved concerning anticipated length of time of the trial and the number of witnesses being spoken of on each side that will be called both in presentation of the State’s case as well as in defense, which assertions or representations have gone into the hundreds, and due to the apparent similarity in circumstances surrounding the events leading up to the charges in both of these cases, and considering the expense both to the State and to the defense in two identical trials, this Court is considering entry of an order consolidating the two indictments for a single trial. The purpose of this Order is to so notify counsel of the Court’s thoughts at this time and by this Order directing that the parties file with this Court, within 15 days from the date of this Order, the objections, if any they have to such a consolidation for purposes of trial and that such objections, if any, should be specific and should point out the prejudices, if any that would result to either the State or to the defendant in such a consolidation.

In its response the state made no objection to the consolidation of the cases and alleged:

1. The facts and circumstances surrounding the deaths of those persons alleged to have been murdered in Indictment 75-3564 would be relevant, material and competent evidence in the trial of that homicide charged against the defendant in Indictment 76-779, and vice versa.
2. In the trial of either indictment all of the surrounding circumstances of all of the homicides would be lawfully and probably necessarily made known to the jury-
3. That all of the homicides alleged in the two said indictments were committed during the evening of December 24,1975, in the same building situate in Winter Garden, Orange County, Florida, and the facts surrounding the same are interwoven and connected with one another.

The defendant in his response objected to the consolidation and alleged:

1. The three homicides alleged in Indictment No. CR 75-3564 are alleged to have occurred through gunshot wounds while the one homicide alleged in Indictment No. CR 76-779 is alleged to be death caused by a blunt instrument.
2. It is the defense’s understanding that while the homicides alleged in the two separate indictments are supposed to have occurred during the evening of December 24, 1975, that the proofs that deaths occurred at separate and distinct times with the homicides alleged in CR 75-3564 occurring at one period of time and the alleged homicide in CR 76-779 occurring at a later time.
3. The defense is not yet in possession of sufficient facts and information to determine all paths to be followed by the defense in these cases, but it remains a distinct possibility that self-defense will be asserted to response to the charges contained in Indictment No. CR 76-779.
4.For the foregoing reasons and upon the legal precedents enunciated by this Honorable Court in its Order and specifically based upon Meade v. State, 85 So.2d 613 (Fla.1956), the defense does hereby interpose its objection to any consolidation of these two indictments for trial.

The court then entered its order consolidating the indictments for purposes of trial and all future proceedings. The order contained the following:

THIS COURT, in exercise of its inherent power, entered its Order dated April 1, 1976, pertaining to possible consolidation of Indictment 76-779 and 75-3564; both the State and Defendant have filed their response to that Order. In his response, the Defendant has neither claimed, or shown, any prejudice that would result to him from the consolidation.
In entering this Order, the Court has considered the cases cited in the prior Order, plus the following ABA Standards:
1. The Administration of Criminal
Justice, Joinder of Offenses and Defendants, § 3.1,
2. Joinder and Severance, § 3.1,
3. The Function of the Trial Judge, §§ 3.8, 3.9.

Florida Rule of Criminal Procedure 3.151(b), in effect at the time of trial, provided as follows:

(b) Two or more indictments or infor-mations charging related offenses shall be consolidated for trial on a timely motion by a defendant. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. A defendant’s failure to timely move for consolidation constitutes a waiver of his right to consolidation. (Emphasis added).

The defendant says that the consolidation of the two indictments over his objections was erroneous in that it was contrary to the provisions of this rule. In support of his contentions the defendant cites Belote v. State, 344 So.2d 565 (Fla.1977), which was not available to the trial judge when he entered his ruling. In Belote three separate informations charging three separate offenses were filed against the defendant. Trial for the three cases was set by separate order on the same date. On the day of trial the defendant first learned that all three cases had been consolidated sua sponte, and objected to such consolidation. The Court in Belote, referred to Kilgore v. State, 271 So.2d 148 (Fla. 2d DCA 1972). In Kilgore the defendant was charged by separate in-formations with second degree murder and carrying a concealed weapon. On the day of trial, the trial court consolidated the cases without motion being made by either of the parties. The defendant objected to the consolidation on the basis of surprise, and the fact that the separate concealed weapons charge would prejudice him with regard to the second degree murder charge. The Court reasoned that when a consolidation of separate and distinct charges is forced upon a defendant over his objection, there conceivably might be cogent and compelling reasons inveighing against the consolidation. This Court in Belote relied upon Kilgore to hold that Belote was denied substantial procedural rights of consolidation over her objection on such short notice.

Buttressing its holding, this Court in Be-lote made reference to the fact that the rule in effect at the time of Belote’s trial allowed consolidation only upon a defendant’s motion.

Unlike the situation in Belote, supra, and Kilgore, supra, no short notice or surprise is present in this record. Technically speaking, the court violated the provisions of the rule when the indictments were consolidated by the court on its own motion. However, resolution of this issue must be made in light of demonstrated prejudice resulting from the consolidation. Neither in the trial court nor on appeal has the appellant shown any prejudice. He had full knowledge of charges he had to defend against at trial and the time between consolidation and trial represented several months. There is no doubt that even if the cases had been tried separately, there would have been no difference in the state’s evidence. In other words, to have proven one case was to have proven the other.

After examination of the entire record it does not appear that this error injuriously affected the substantial rights of the defendant. Therefore, the judgment should not be reversed upon this ground. § 924.33, Fla.Stat. (1979).

Defendant next contends that the failure of the trial court to grant any of his motions for continuances was a denial of adequate time to prepare a defense and a denial of due process. Generally, the action of the trial court on a motion for continuance will not be disturbed on appeal unless there has been a palpable abuse of discretion. Mills v. State, 280 So.2d 35 (Fla. 3d DCA 1973).

The thrust of the requests for continuances was essentially that defendant needed more time to prepare his defense. However, in his motion for continuance the defendant consistently and expressly refused to waive his right to a speedy trial. If a continuance is granted upon the motion of the defendant the speedy trial time is tolled. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla. 1971). Obviously the defendant was seeking an extension of time but wanted the trial to be held within the 180-day period specified by the speedy trial rule. Fla.R.Crim.P. 3.191. The trial began on June 1. There were only twenty-one days within the speedy trial time in which the trial could have taken place had the continuance been granted. It is clearly established that the decision to grant or deny a motion for continuance is addressed to the sound discretion of the trial court. Durcan v. State, 350 So.2d 525 (Fla. 3d DCA 1977). The record does not show an abuse of discretion, so this contention is without merit.

Defendant next complains about four separate searches. On the night of the homicide, Officer Yawn was sent to defendant’s house by Chief Don Ficke. At the time Ficke had knowledge that the defendant had been involved in a shooting at the store and the officers had a reasonable belief to suspect foul play. The officers certainly had reason to believe that the other members of the family had been involved in some foul play. The officers wanted to determine the location or whereabouts of Eunice and her parents. They arrived at the house and no one was there. The reasonableness of an entry by the police upon private property is measured by the totality of existing circumstances. The right of police to enter and investigate an emergency, without an accompanying intent either to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law. See United States v. Herndon, 390 F.Supp. 1017 (S.D. Fla.1975); State v. Hetzko, 283 So.2d 49 (Fla. 4th DCA 1973); Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967). The officers arrived at the house and when there was no response, they acted reasonably in entering the house to determine whether any foul play had occurred and to locate Eunice Zeigler and her parents. After finding no one in the house, the officers proceeded to the garage and observed a car belonging to Curtis Dunaway. It was reasonable for the officer to look inside the automobile to see if it contained any evidence of wrongdoing. It was reasonable for the officer to seize the gun located on the rear floor of the automobile which was parked in the garage.

The second search of the house, which defendant says was illegal, was conducted in the early morning of December 25, 1975. The trial court found that this search was a result of a valid consent given by the defendant. Nurse Clark testified that Detective Frye asked her to tell defendant what the consent was, to read it to him, and have him sign it. She read the document to the defendant, asked him if he understood it, and defendant stated that he was willing to sign it. She testified that defendant was alert and that his answers were responsive to questions she asked him. Another nurse testified that at the time defendant was coherent and conscious. There exists in the record clear testimony regarding defendant’s mental condition at the time he signed the consent form. The record fully supports the determination of the trial judge that the consent was voluntarily given. See Bailey v. State, 319 So.2d 22 (Fla.1975); Reddish v. State 167 So.2d 858 (Fla.1964).

Defendant also assigns as error the order of the trial judge denying his motion to suppress certain items found in the store where the homicides occurred. The trial judge found:

The evidence is unequivocal that the defendant himself called the police to the store; that there were four dead bodies at the store; that the police were in process of conducting a crime scene investigation which, due to its complexity, continued for more than a week; that the police were legally upon the premises carrying out their required duties. There was nothing illegal or unlawful in so investigating the scene which would require the items taken be suppressed.

If the police officers had gone to the store for a reason other than defendant’s invitation, they would have been perfectly entitled to look inside to ascertain the need to offer immediate aid or to see if a killer was still on the premises. In the course of this activity they would have likewise been permitted to seize all evidence that was in their plain view.

Defendant relies upon Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The Supreme Court of the United States held that there is no such thing as a crime-scene exception to the Fourth Amendment. The Court acknowledged, however, the right of police officers to respond to emergency situations and the Fourth Amendment does not bar police officers from making warrantless entries when they reasonably believe that either a person within is in immediate need or to see if a killer is still on the premises. The police may seize any evidence that is in plain view during the course of their legitimate emergency activities.

In the case sub judice, the police were at the store as a result of the invitation of the defendant. That invitation removed any application of Mincey. Also, the trial judge did not base his ruling on a construction of the Fourth Amendment. The above quoted portion of his order reflects that the basis of the ruling is the fact that defendant called the police to the store. The trial court did not commit error in denying the motion to suppress the items which were found and seized during the officer’s presence in the store.

• Defendant next contends that the trial court committed reversible error by admitting, over defendant’s objection, evidence in violation of Florida Rule of Criminal Procedure 3.220 relating to discovery. Witness Delaney was called as a defense witness out of turn and testified that he examined photographs of the bloody footprints, the shoes of defendant, and comparison prints. Although there were general characteristics of similarity, as an expert he could not find any specific points of identification. He concluded that the prints in question could have been made by defendant’s shoes but he could not positively state that the shoes did in fact make the print. At defendant’s request, Witness Delaney was excused from further attendance.

The state then called Professor McDonnell as a witness. He testified that he conducted experiments with the shoes. Defendant then objected to any testimony relative to such tests on the basis that he had received no report or any indication that such tests had been conducted. In support of his objection the defendant relies upon Cumbie v. State, 345 So.2d 1061 (Fla.1977) where the existence of statements made by a defendant was not disclosed during depositions taken by the defense of two officers who were called as witnesses by the state, and no inquiry was made into the prejudice resulting to the defendant. The court held that reversible error was committed.

A trial court has discretion in determining whether non-compliance with the discovery rule results in harm or prejudice, but that discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Leeman v. State, 357 So.2d 703 (Fla.1978). When the trial court, sub judice, became aware that a non-disclosure had occurred, it inquired of the defendant how long he wished to examine Witness McDonnell and his evidence. Defendant replied at least thirty minutes. Trial was recessed and apparently defendant received the time he requested.

The failure to observe and comply with the rule of discovery should be remedied in a manner consistent with the seriousness of the breach. Cooper v. State, 336 So.2d 1133 (Fla.1976). Here Witness Delaney had testified that he performed the tests with shoes using printers ink, while Witness McDonnell performed tests using human blood. Defendant claimed that he had not known about or seen the experiment regarding the shoe prints made in blood. The obvious remedy consistent with the breach would be to allow him the necessary time to do so. The trial judge did this. This case is remarkably different from Cumbie, where the prosecution responded falsely to a demand for discovery. When it proposed to introduce testimony contrary to that response, the trial court failed to make any inquiry and failed to afford any remedy to the defendant. In contrast, the facts sub judice, clearly show that the state did not falsely respond to a discovery demand but rather failed to disclose the fact that Witness McDonnell had performed experiments during the course of the trial. A remedy was afforded and defendant then became aware of what Witness McDonnell had done. Actually, there was very little contradiction between the testimony of Delaney and the testimony of McDonnell. The failure of the state to observe and comply with the rule of discovery was remedied in a manner consistent with the seriousness of the breach and the trial judge did not commit reversible error in admitting this evidence.

The defendant argued that the trial judge committed reversible error in admitting certain fingerprint evidence as well as in admitting into evidence a bullet reportedly taken from an orange grove where defendant is alleged to have taken Thomas and Mays to fire guns. His argument is based upon the principle that fingerprint evidence is inadmissible unless the circumstances are such that the print could have been made only at the time the crime was committed, citing Knight v. State, 294 So.2d 387 (Fla. 4th DCA 1974). Unless it is shown when a fingerprint was placed on a particular item or a particular location, that fingerprint is an insufficient circumstance on which to base guilt. In the case sub judiee the fingerprint evidence was not the sole basis on which the prosecution rested. The purpose of introducing the fingerprint and the bullet into evidence was to corroborate the testimony of state’s witnesses. Under the circumstances of this case, the trial judge did not commit reversible error in admitting the fingerprint evidence as well as the bullet. See Bryant v. State, 235 So.2d 721 (Fla.1970).

Everything seized and sent to the FBI was returned in substantially the same basic condition, with the exception of necessary alterations for the purpose of testing and identification. This was a sufficient predicate showing chain of custody. See Dixon v. State, 216 So.2d 85 (Fla. 2d DCA 1968) (defendant’s argument that there was an insufficient showing of a chain of custody of his clothes was without merit.) The defendant has failed to show the trial court abused its discretion in admitting these challenged items into evidence.

Dr. Machler, defendant’s psychiatrist, had conducted a sodium butathol test and a video tape presentation of Dr. Madder's interview with the defendant had been presented to the grand jury. A proffer of this testimony was made at trial and defendant says the trial judge committed error in not allowing it into evidence. The trial court also refused to allow the testimony of Dr. Allen Zimmer, another psychiatrist. The results of a sodium butathol test are not admissible in a criminal prosecution. There would be no way to cross-examine defendant when he was making revelations of fact, which, according to him, he could not otherwise remember. Such evidence would be hearsay. See Cirack v. State, 201 So.2d 706 (Fla.1967). The rationale supporting the well-established rule that results of a polygraph examination are inadmissible, is equally applicable to the results of a sodium butathol test. See Sullivan v. State, 303 So.2d 632 (Fla.1974); State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977); Crawford v. State, 321 So.2d 559 (Fla. 4th DCA 1975), approved in State v. Crawford, 339 So.2d 214 (Fla.1976).

Also the trial judge properly excluded the testimony of the psychiatrist, Dr. Zimmer. Defendant’s sanity was never an issue at trial. During the guilt phase of the trial, testimony regarding the mental state of a defendant in a criminal ease is inadmissible in the absence of a plea of not guilty by reason of insanity. Tremain v. State, 336 So.2d 705 (Fla. 4th DCA 1976).

The defendant next contends that the trial court committed reversible error when he admitted Frank Smith’s alleged conversation with the defendant because the conversation was over a telephone and the evidence was therefore hearsay. Edward Williams testified that the defendant inquired of him about obtaining a “hot gun” sometime in June prior to the homicides. Williams went to Frank Smith’s home and in Smith’s presence called the defendant. Williams told defendant that Smith did not have any guns at that time and defendant told Williams to put Smith on the telephone. Williams handed Smith the telephone, Smith spoke to someone who identified himself as Tommy Zeigler. As a result of that conversation Smith purchased two RG revolvers at the Diamond Jim Pawn Shop in Orlando from Mary Pringle. After he purchased the guns he called a number that was given to him by the person with whom he had spoken in Edward Williams’ presence. The phone was answered: “This is Zeigler Furniture Store.” Smith asked for Tommy Zeigler and the voice responded, “This is he speaking.” Smith recognized that voice as belonging to the person with whom he had spoken during the first conversation. Smith told the person what kind of guns he had and how much they would cost and the person agreed. Later defendant called Williams and asked him to go over to Smith’s house and pick up a package. Defendant gave Williams a sealed envelope which he gave to Smith in return for a paper sack in which he saw the butts of two guns. Smith testified that he received the money from Williams and that he gave Williams a paper bag containing the two RG revolvers.

In cases in which the fact that a telephone call was made or received becomes relevant by reason of its bearing upon a material issue, the fact may become admissible in evidence as an independently relevant one irrespective of the substance or narration involved, or the truth or falsity thereof. Annot., 13 ALR 2d 1411, 1412 (1950). See Chacon v. State, 102 So.2d 578 (Fla.1957). Utterances are exempt from the hearsay rule. For example, utterances which accompany a material, equivocal act, and serve to complete the act and give it definite legal significance are exempt from the hearsay rule. See 6 Wigmore on Evidence, § 1766 at 177 (3d ed. 1976). Smith’s testimony concerning the telephone conversation represented a verbal act which formed the basis for his subsequent action in securing the two RG revolvers and delivering them to Williams.

The other theory which supports the trial court’s ruling is that telephone conversations are competent evidence provided that the identity of the person with whom the conversation was had is established by direct evidence, facts or circumstances. 7 Wigmore on Evidence, § 2155 (3d 1978). The admissibility of these conversations is governed by the same rules of evidence concerning face-to-face conversations except the party against whom the conversations are sought to be used must be identified. Although Smith did not positively testify that the person with whom he spoke was defendant, other facts and circumstances provided the basis for the conclusion that defendant was the person with whom Smith spoke. Circumstances both preceding and following the conversation sufficiently identified the caller as defendant. The completeness of the identification went to the weight of the evidence rather than to its admissibility. The trial court correctly ruled that Smith’s testimony was admissible.

The defendant complains of the manner in which Juror Young was excused and the alternate juror seated. He also questions the propriety of numerous consultations pri- or to the rendition of the verdict among the court, attorneys, bailiffs, clerk, nurse, and a juror. The trial judge’s action demonstrates the exercise of sound discretion. The defendant has failed to demonstrate reversible error in the circumstances surrounding the deliberations of the jury.

Defendant filed a request to interrogate the jurors. He claimed that he had no intention of delving into how the jurors conducted their deliberations; however, his effort to determine the existence of “juror misconduct” would necessarily have accomplished the same thing. An interview of jurors was held by the trial court, but defendant complains that he did not get the chance to conduct the interviews. Inquiry by the trial court evaporated any grounds, either real or imagined, for defendant’s motion to interview the jurors. The trial court did not commit reversible error in refusing to allow defendant’s counsel to interview the jurors.

Defendant testified that he was attacked by unknown assailants. He related how he fought with his attackers, how he was in and out of consciousness and how he suffered a gunshot wound and heard the unknown voice directing that Charles Mays or someone be killed. The jury rejected this defense and the evidence, as previously discussed, was ample to sustain the verdict of the jury.

By its verdict the jury found proof beyond a reasonable doubt that defendant had committed four murders within the course of two hours. He killed Eunice quickly and for her, unexpectedly. She was shot from behind. With Eunice dead, defendant then shot his in-laws. Perry struggled with the defendant. Defendant subdued Perry, rendered him harmless, and shot him once while he lay on the floor. Defendant then went in search of Virginia, found her and shot her in the head. The evidence shows that these people were killed prior to 7:30 P.M.

By 9:00 P.M. he had murdered Mays in furtherance of a crafty design to focus attention on others as the murderers. Defendant could not persuade Thomas to enter the store so Thomas survived. He got Williams partially inside the back hallway, turned on him and tried to shoot him in the chest. The gun failed to fire, so Williams survived.

By this time, defendant was very desperate. He had four bodies in the store and little, if anything, to support the appearance of a surprise robbery and massive shootout. He would not appear to be involved if he happened to be one of the victims. Accordingly, he shot himself and called the police for help.

The jury returned a verdict of first degree murder for the homicides of Eunice and Mays and a verdict of second degree murder for the homicides of Virginia and Perry. After the sentencing procedure, the jury recommended life imprisonment. The trial judge overruled the recommendation of the jury and imposed the sentence of death for the murders of the wife and Charles Mays. The following findings of fact were filed by the trial judge:

Florida Statutes 921.141(3) requires specific written findings of fact when a sentence of death is imposed. Additionally, it is recognized that the Florida Supreme Court has set forth, in addition to the enumerated statutory factors relative to “aggravating” and “mitigating” circumstances, the admonishment that “... in order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 ([Fla.]1975). In following the statute (Fla.Stat. 921.141), the trial judge is directed to weigh the statutory aggravating and mitigating circumstances when determining the appropriate sentence to be imposed in light of all the facts adduced. In short, the trial judge must justify imposition of a sentence of death, which must be in writing, applying the facts of the case to legislatively mandated criteria.
“When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla. Stat. § 921.141(7), F.S.A. All evidence of mitigating circumstances may be considered by the judge or jury.” State v. Dixon, 283 So.2d 1, 9 (Fla.1973).
“It must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of x number of aggravating circumstances and x number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.” State v. Dixon, supra, at pg. 10.
First, a consideration of the “aggravating” factors as found in the evidence and established by the verdicts returned by the jury.
(a) Defendant was not under sentence of imprisonment at the time he committed the four murders in these cases.
(b) Defendant, at the time he committed the four murders, had not been previously convicted of another capital offense or of a felony involving violence or threat of violence.
(c) Defendant, at the time he committed the murders, did knowingly create a risk of death to many persons.
(d) Although open to a different interpretation, the Court does not find that the murders were committed while Defendant was engaged in any robbery, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb.
(e) The murder of Charles Mays was committed by the Defendant to cover up the fact he had earlier murdered his wife and in-laws and thus, was committed for the purpose of avoiding or preventing a lawful arrest.
(f) The murder of Eunice Zeigler was committed for pecuniary gain — /. e., collect $500,000.00 in insurance benefits. The murders of Charles Mays, Virginia Edwards and Perry Edwards were committed in furtherance of his plan to murder his wife for the money and to have it appear she was killed by Charles Mays and others in perpetration of a robbery or a breaking and entering.
(g) The murder of Eunice Zeigler was not for the purpose of disrupting or hindering the lawful exercise of any governmental function or enforcement of laws; it is arguable that the killing of Charles Mays (also Mr. & Mrs. Edwards) was for purpose of disrupting or hindering enforcement of the law, i. e., to escape prosecution and detection for the murder of Eunice Zeigler and her parents by attempting to cast blame for these killings on Charles Mays.
(h) The murders of Eunice Zeigler and Charles Mays were especially heinous, atrocious, and evil. The evidence establishes that the killings, including those of Mr. & Mrs. Edwards, were in fact extremely wicked, shockingly evil, outrageously wicked and vile and designed to inflict a high degree of pain with utter indifference to their suffering, and committed without any pity or apparent remorse.
The statements made by the Court at time of sentencing, and later reduced to writing and filed in this proceeding, are also incorporated into this written finding, by reference, and made a part hereof.
Having found sufficient “aggravating” circumstances exist which justify and require imposition of the death sentence, it becomes necessary to determine whether or not sufficient mitigating circumstances exist which outweigh the aggravating circumstances.
The evidence establishes:
(a) The Defendant has no significant history of prior criminal activity.
(b) The murders were not committed by Defendant while under the influence of extreme mental or emotional disturbance.
(c) None of the victims were participants in the Defendant’s conduct nor did any of them consent to his acts or actions.
(d) Defendant was the sole participant and perpetrator of the murders in question.
(e) Defendant did not act under extreme duress nor was he under the substantial domination of another person at the time he committed the murders.
(f) Defendant suffered no impairment of mental capacity.
(g) Defendant was thirty years old when the crimes were committed.
The aggravating circumstances have been proved to the exclusion of any reasonable doubt. Only one mitigating factor is present — the Defendant has no significant history of prior criminal activity — which is not sufficient to override the aggravating circumstances present.
No useful purpose would be served by a recitation of the facts and evidence in these cases — they are a matter of record and nothing herein stated can or could change them. It is the facts which require this Court to not accept the jury recommendations of life imprisonment and to impose the death sentence. In reaching this conclusion, this Court has reviewed and attempted to follow the law and procedure heretofore enunciated by the Florida Supreme Court in its decisions relative to imposition of a sentence of death and as approved by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

The question of whether the murder of Eunice Zeigler was especially heinous, atrocious, and evil becomes immaterial when all of the aggravating and mitigating factors are considered. The trial judge obviously concluded that the facts surrounding this mass murder and suggesting a sentence of death were so clear and convincing that virtually no reasonable person could differ. Although the physical act of killing Eunice by shooting her from behind did not fall within this Court’s definition of the statutory factor, “especially heinous, atrocious, and cruel,” the fact that she was murdered for pecuniary gain and defendant knowingly created a risk of death to others by virtue of the overall scheme of a planned mass homicide could certainly be given consideration by the trial judge. This court has affirmed the trial court’s override of a jury recommendation of life based on facts showing equal or even less aggravating factors. See Gardner v. State, 313 So.2d 675 (Fla.1975) vacated Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and Sawyer v. State, 313 So.2d 680 (Fla.1975). Subsequent to Tedder v. State, 322 So.2d 908 (Fla.1975), we affirmed a trial court’s override of a jury recommendation of life in Douglas v. State, 328 So.2d 18 (Fla.1976); Dobbert v. State, 328 So.2d 433 (Fla.1976); Barclay v. State, 343 So.2d 1266 (Fla.1977); and Hoy v. State, 353 So.2d 826 (Fla.1978).

The facts supporting the sentence of death are clear, convincing, and are established beyond a reasonable doubt.

We have carefully examined the thirty-two volumes of the record in this case and carefully considered the brief of the defendant. In some instances defendant has been able to show certain inconsistencies in the evidence. However, when one considers the magnitude of this case, all facts could not be expected to match perfectly. The defendant has not shown anything in his brief which purports to be a reasonable hypothesis of innocence. An examination of the evidence presented to the jury does not and cannot lend itself to such a construction. Defendant has had a fair trial and the other questions presented by him in his brief are without merit.

It is therefore our opinion that the judgments and sentences should be affirmed.

It is so ordered.

BOYD, OVERTON and ALDERMAN, JJ., concur.

SUNDBERG, C. J., and ENGLAND, J., concur in conviction but dissent as to sentence.