author: BOWLING, Justice,

text:
    John CONWAY and Robert O’Brien v. STATE of Mississippi.
    No. 51741.
    Supreme Court of Mississippi.
    March 12, 1980.
    Rehearing Denied April 16, 1980.
    Addendum Nov. 12, 1980.
    James H. Heidelberg, Fielding L. Wright, Jr., Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellants, John Conway and Robert O’Brien, were indicted and convicted in the Circuit Court of Jackson County for the possession of a controlled substance (methamphetamine) with intent to deliver in violation of Mississippi Code Annotated section 41-29-139 (1972 as amended). The jury returned a verdict of guilty as charged against both defendants. Each was sentenced to serve a term of twenty years with the Mississippi Department of Corrections, and a fine of $15,000 was imposed on each.

On appeal, appellants alleged two assignments of error, namely:

1. The trial court erred in overruling defendants’ motion to suppress; and

2. That an alleged remark made by the district attorney in his argument to the jury constituted reversible error.

The motion to suppress was directed toward the methamphetamine substance secured from an automobile as hereinafter related. The motion contended that the evidence should have been suppressed because of both an illegal arrest and an illegal search.

There is practically no dispute in the facts of the occurrences leading to appellants’ arrest. Testimony was received on the motion from three participating officers. There were five officers involved in the matter; however, it was stipulated that the testimony of the other two would be cumulative. The principal participant and the guiding figure in the entire matter was one Don Richards, who at the time was District Supervisor for the Gulfport office of the Mississippi Bureau of Narcotics. His testimony and the testimony of the other officers was that information had been received that a shipment of methamphetamine would arrive in the Jackson County area on the weekend of July 1 and 2, 1978, which dates were a Saturday and Sunday. On information from an informant, a search warrant was secured for a residence in Pas-cagoula where there lived Matthew Dixon and Richard Johnson and their respective wives. The activities surrounding the search of this residence took place late at night on July 1 and the early morning of July 2. During the course of the search of the residence, appellant John Conway came to the location where he and Agent Don Richards became acquainted.

The officers received information from Johnson that he had carried a man named “Obie” to Mobile, Alabama, on Saturday, July 1, for the purpose of the latter flying to Philadelphia, Pennsylvania, to secure the drugs, and returning on Sunday afternoon to Mobile, where he would be met by someone then unknown.

At noon on Sunday, July 2, the officers met for lunch in Pascagoula to discuss what action to take regarding the information received. As stated, the identity of the person who was to pick up “Obie” in Mobile at the air terminal was unknown. There was doubt that the delivery of the substance would take place due to publicity regarding the arrests the night before. During the afternoon of Sunday, the agents, under Richards’ direction, decided to take a chance and go to the Mobile air terminal to conduct surveillance and try to ascertain whether or not the drug would be brought in by “Obie,” who would meet him, and what action they would then take.

Late in the afternoon, appellant, John Conway, was observed driving into the air terminal parking lot and entering the terminal. Dixon was also observed arriving in another vehicle and entering the terminal. They were observed talking to each other. At approximately 5:30 P.M., a plane arrived from Philadelphia, by way of Atlanta, “Obie,” who was later identified as appellant Robert O’Brien, got off the plane carrying a small suitcase and met appellant Conway and Dixon. The three then went to the parking lot with “Obie” getting into Conway’s vehicle with the bag. Both vehicles then headed toward Mississippi. The officers began surveillance of the two vehicles with the admitted intention of stopping them at some point after reaching the State of Mississippi. Shortly after crossing the state line, and before the officers had made any move to stop the vehicles, Conway and Dixon stopped on the side of the road, got out of their cars and approached each other. The officers, under the direction of Richards, immediately stopped both in front of and behind the two suspect vehicles. Upon approaching the Conway vehicle, one officer observed several small plastic bags in a larger plastic bag — all containing a white powdery substance — laying on the rear floorboard of the car in plain view. Conway, O’Brien and Dixon were immediately arrested and placed in the custody of the officers. The substance laying on the floorboard was seized.

One officer was left with the two vehicles, which were later towed by wreckers to Pascagoula. A search warrant for the vehicles was secured. Pursuant to this warrant, the suitcase that had been carried from the air terminal by appellant O’Brien was seized, opened, and a relatively large amount of methamphetamines found therein. The evidence indicated that the drug was worth a considerable sum of money.

Appellants contend that their warrantless arrest was invalid. It is strongly urged that the officers had ample time and opportunity to apply for and secure a valid arrest warrant, and that without such warrant they did not have probable cause to make the arrests. The answers to these contentions are clear. During the early part of the morning of Sunday, July 2, the officers learned from Johnson, who had recently been arrested at his residence, that on July 1 he had taken a person known only to him as “Obie” to Mobile to catch a plane. Although the officers met appellant Conway at the time of Johnson’s arrest, no information was secured by the officers at any time that Conway was the person who would meet “Obie” the next day in Mobile. No information was received by the officers that Dixon would also appear at the air terminal with Conway. The officers were more or less “shooting in the dark” when they decided on Sunday afternoon to go to Mobile, as they anticipated that the person known as “Obie” and never seen by them would be warned not to return to Mobile with the supply of drugs. The only warrant that the officers could possibly have secured would have been a so-called “John Doe” warrant. This was impractical because of the time element involved in traveling to Mobile and setting up surveillance prior to the arrival of the plane. The first identification of the personalities involved in picking up “Obie” was when Conway and Dixon arrived shortly before the plane was due. Conway and Dixon were then observed meeting “Obie,” who was carrying a small bag and all three were seen getting into the Conway and Dixon vehicles and heading toward Mississippi. The officers had no alternative but to follow, readily admitting that they intended to stop the two vehicles after reaching the Mississippi state line. The vehicles were not stopped by the officers, and it is clear from the record that an arrest was not made until the powdery substance was seen on the floorboard of the Conway vehicle. It is abundantly clear that under the authorities the officers had probable cause to arrest appellants and Dixon without a warrant.

In United States v. Burnett, 526 F.2d 911 (5th Cir. 1976), cert. den. 425 U.S. 977, 96 S.Ct. 2179, 48 L.Ed.2d 801, the Court said:

Although appellants argue that the agents had ample opportunity to obtain an arrest or search warrant, this argument, even if true, does not invalidate their arrests. A warrantless arrest is lawful so long as the arresting officers have probable cause. E. g., United States v. Hofman, 488 F.2d 287 (5th Cir. 1974) (no warrant); United States v. Morris, 477 F.2d 657, 663 (5th Cir.), cert. denied, 414 U.S. 852, 94 S.Ct. 146, 38 L.Ed.2d 101 (1973) (invalid warrant).

In the more recent case of United States v. Parker, 549 F.2d 1217 (5th Cir. 1977), we find the following:

Parker also contends that the government agents’ failure to obtain an arrest warrant vitiated his arrest and .rendered his subsequent confession illegal. Parker does not dispute that the agents had probable cause to arrest him, but asserts that they should have obtained a warrant in the approximately 34 hours between the time that they became aware of his whereabouts and the time of the arrest. This argument has no merit. While it is preferable for law enforcement officers to obtain arrest warrants where feasible, Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Wong Sun v. United States, 371 U.S. 471, 479-82, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), an arrest supported by probable cause should not be invalidated solely because the officers failed to secure a warrant, Gerstein v. Puch, 420 U.S. 103, 113, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); United States v. Hofman, 488 F.2d 287 (5th Cir. 1974). Although Parker argues that the officers had ample opportunity to obtain an arrest warrant, this argument, even if true, does not invalidate his arrest, United States v. Burnett, 526 F.2d 911 (5th Cir.), cert. denied, 425 U.S. 977, 96 S.Ct. 2179, 48 L.Ed.2d 801 (1976).

We, therefore, readily see that appellants cannot take advantage of the time element to complain that an arrest warrant was not secured. We now consider the question as to whether or not the officers had probable cause for the eventual arrest of the three persons.

In Strode v. State, 231 So.2d 779 (Miss.1970), this Court, in discussing probable cause, said:

Probable cause is a practical, nontechnical concept, based upon the conventional considerations of every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

In Joyce v. State, 327 So.2d 255 (Miss.1976), this Court, in holding that probable cause existed, stated as follows:

Not only does the evidence prove the tip to be self-verifying, but also that an independent investigation was made before Wann’s car was stopped and searched. The narcotics agents observed Wann picking up two very heavy suitcases at the baggage checkout and carrying them to his car. Sixty pounds of marijuana compressed in kilo bricks does not occupy much space. It could be carried in suitcases, but it would make them heavier than usual. They observed Joyce and his companions furtively and nervously looking around to see if anyone was watching them and then as they drove slowly away from the airport the agents observed Wann, the driver, frequently looking in his rearview mirror and appellant and Saczynski, the passengers, frequently looking through the rear window.

In the case of Isaacks v. State, 350 So.2d 1340 (Miss.1977), the Court, through Justice Inzer in the majority opinion and Justice Sugg in the dissenting opinion, discussed the many cases dealing with circumstances under which evidence may be seized when in “plain view” without a warrant. The majority opinion stated as follows:

Only under certain circumstances may officers seize contraband in “plain view” without a warrant. They are: (1) incident to a valid arrest, (2) where officers have a valid search warrant to search a given area for specific objects and in the course of the search come across contraband, (3) incident to “hot pursuit” of a fleeing suspect, or (4) incident to a search of a stopped automobile on probable cause or because of the mobility of the vehicle. .

From the facts and circumstances herein-before related, it is evident that the conditions under (1) and (4) apply here. As for (1), we have already seen that before the contraband was viewed, probable cause existed for a warrantless arrest of appellants. The seizure of the contraband can also be justified under (4), as there was probable cause to stop the car, and the narcotics agents were then entitled to seize the powdery substance within their plain view. Green v. State, 348 So.2d 428 (Miss.1977).

The United States Supreme Court also has spoken on the situation where contraband objects are in plain view of an officer who has a right to be where the objects may be seen. In Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), it was said:

It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. .

The trial court was correct in overruling appellants’ motion to suppress.

Appellants claim reversible error because of an alleged statement made by the district attorney in argument to the jury. The only thing in this record in this regard is the following that was dictated to the court reporter after the closing arguments had been made:

BY MR. WRIGHT: In view of the fact that the closing arguments of all counsel was not being recorded, and for the purpose of the record, the defendant moved for a mistrial based on a comment made by the assistant district attorney, Joe R. Colingo, during his closing argument to the effect that the testimony was uncon-tradicted. At which point counsel objected and moved for a mistrial based on such a statement being a comment on the defendant not rebutting any testimony.
BY MR. HUNTER: May it please the court, the only exception to that is I believe the statement was, that the evidence was uncontradicted.
BY MR. COLINGO: That’s what the statement was.
BY MR. WRIGHT: It’s the same thing.
BY MR. COLINGO: No, it’s not.
BY THE COURT: There is a case on it, but I will overrule it.

There is no way that this Court can determine the context in which the alleged statement of the district attorney was made to the effect that “the testimony” was un-contradicted. This Court has held many times that each case must be considered individually where there is a question as to the prosecution’s comments on the defendant’s failure to testify. In Peterson v. State, 357 So.2d 113 (Miss.1978), we said:

[E]ach case on these types of matters has to be considered in the light of that particular case. The facts of all are different .

In Barnes v. State, 230 Miss. 299, 92 So.2d 863 (1957), this Court stated:

The county attorney, in his argument to the jury, said: “Mr. Anderson testified the value of the feed as being $3.50 a sack and that is not disputed . . .” It will be noted that the remarks had reference only to the value of the feed. They were not directed to whether Barnes was guilty or innocent of the stealing. Other witnesses could have testified to such values — not just Barnes himself. The remarks did not apply especially to Barnes. They were applicable to any witness Barnes might have produced to testify about the value of the property. The remarks were general — not personal. As a matter of fact, Barnes did not place any witness upon the stand. He produced no testimony whatever. In addition, Barnes could not have been prejudiced by the remarks for the reason that he obtained this instruction: “The court instructs the jury for the defendant that you cannot convict the defendant simply because he did not testify.” That instruction was read to the jury before any argument was made. It called to the attention of the jurors in the most pointed and forceable way the fact that the defendant did not testify. It was much more effective in directing the attention of the jury to the failure of Barnes to testify than were the remarks of the county attorney.

In Smith v. United States, 234 F.2d 385 (5th Cir. 1956), we find the following:

We think it quite clear that this was fair comment on the defendant’s failure to produce witnesses touching on a subject which he injected in his conduct of the trial. During his argument and cross-examination of witnesses, he referred to alleged criminal acts of government witnesses. The comment by the United States Attorney that the accused had the opportunity to present any criminal action in the form of testimony is similar to that which was found by the court to be unobjectionable in Langford v. United States. There a statement by counsel that “the defendant had no witness to impeach the stories of [government witnesses]” was held by the court to be in substance a statement that the stories were not contradicted. As this court has said in Jamail v. United States, the rule against commenting on the failure of a defendant to testify in his own behalf “does not go to the extent of forbidding argument by counsel for the prosecution to the effect that the evidence against a defendant is uncontradicted.” The same is true with respect to a failure to produce testimony on any phase of the defense upon which the accused seeks to rely.

In Clark v. State, 260 So.2d 445 (Miss.1972), we stated the following:

. There are a few cases where the comments are of the character here under consideration in which we have held that the comments did not amount to reversible error. In those cases there was either an eye witness other than the accused available to him and who was not placed on the stand, or the guilt of the accused was so manifest that no fair jury could have returned a verdict other than guilty. Chatman v. State, 244 Miss. 659, 145 So.2d 707 (1962). . . .

In Lambert v. State, 199 Miss. 790, 25 So.2d 477 (1946), this Court stated in discussing the question now before us:

. “the testimony for the state” includes all matters on which the State introduces evidence . . .” “Uncon-tradicted” would include all evidence of a contradictory nature, even circumstantial evidence .

In Johnson v. State, 109 Miss. 622, 68 So. 917 (1915), the alleged statement by the prosecuting attorney was almost identical with the one propounded here. The Court, in affirming the conviction, stated:

The evidence for the state was uncontra-dicted — it stood alone as the evidence in the case — and to say so, in our opinion, cannot be construed as any sort of reference, of any character whatever, to the failure of defendant to testify. To so hold, it seems to us, would be to deny to the state the privilege of arguing the case at all.

In Lambert v. State, supra, and as reaffirmed in Chatman v. State, supra, it was stated:

this Court has reversed for comments of the character here under consideration, unless (1) there was an eye witness other than defendant available to the accused and who was not placed upon the stand by him, or (2) the guilt of the defendant was so manifest that no fair jury could have returned a verdict other than guilty.

Also see Martin v. State, 200 Miss. 142, 26 So.2d 169 (1946).

As hereinbefore emphasized, based on the record before us, we are unable to make a reasonably accurate determination as to the context in which the alleged statement was used. There was no bill of exceptions requested. • No testimony or evidence whatever was introduced by the appellants and the statement could have been made in connection with many “objects of evidence” that were uncontradicted. Furthermore, as stated in Chatman, supra, no fair minded jury could have returned a verdict other than guilty in this case.

AFFIRMED.

ADDENDUM

Subsequent to the issuance of the foregoing opinion and the denial of appellants’ petition for rehearing and the mandate of this Court, there was filed a joint motion by appellants and appellee to remand the cause for resentencing. The Court considered the motion en banc and it was sustained. The cause was remanded to the Circuit Court of Jackson County, Mississippi, solely for the purpose of resentencing the appellants under the proper statute.

AFFIRMED AND REMANDED FOR RESENTENCING.

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


source: Caselaw Access Project

author: ROBERTSON, Presiding Justice,

license: Public Domain

text:
    The GREAT ATLANTIC & PACIFIC TEA COMPANY v. James V. LACKEY, Trustee.
    No. 52391.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    As Corrected March 18,1981.
    Rehearing of Lackey, Trustee, Denied May 27, 1981.

      L. Arnold Pyle, Marvin A. Cohen, James L. Jones, Betty A. Morgan, Watkins, Pyle, Ludlam & Stennis, Jackson, for appellant.
    Vardaman S. Dunn, Cox & Dunn, Jackson, O. B. Triplett, III, Forest, for appellee.
    Before ROBERTSON, P. J., and BROOM and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

The Great Atlantic & Pacific Tea Company, Inc. (A & P) appeals from a decree of the Chancery Court of Scott County canceling a 15-year lease and awarding “a monthly rental of $3,139.60, from February 24, 1979, until this decree becomes final or the defendant voluntarily terminates the lease.”

On April 8, 1967, the V. R. Lackey Trust, by James V. Lackey, Trustee, entered into a lease contract with A & P. Lackey agreed to construct a building and parking lot in Forest, Mississippi, for A & P, “for the purpose of a general merchandise business.” A & P obligated itself to pay a monthly rental of $1,427.00 beginning April 1, 1968, plus 1% of gross sales in excess of $1,712,400 per year. The lease was for a primary term of 15 years ending March 31, 1983, with “the right and option of extending said term for 3 successive terms of 5 years each.” Nothing was realized under the bonus percentage rental clause until the year July 1, 1975, to June 30,1976, when Lackey received $5,771.94. For the year July 1, 1976, to June 30,1977, he received $9,169.81, and for the year July 1, 1977, to June 30, 1978, he received $12,546.52, under the bonus 1% rental clause. These bonus payments were over and above the monthly rental of $1427.00.

On February 24, 1979, A & P moved into a new building constructed for it about a mile from the Lackey building, but continued to pay the monthly rental of $1427.00 to Lackey.

Lackey filed a bill of complaint in the Chancery Court of Scott County on July 19, 1979, averring that A & P had defaulted on its lease contract by failing to operate “a general merchandise business” on the leased premises. Complainant prayed that on a final hearing the court would enter a decree canceling the lease contract because of the default of the lessee, or that the court would render a decree in favor of the complainant for (a) 1% of the gross sales of the defendant, “computed in accordance with the terms of said lease, or, (b) a reasonable monthly rental from the date when the premises were vacated by defendant, or, (c) the base rental in the lease sued on plus the gross sales being received at the new location of its store in excess of $1,724,000.”

After a full hearing, the court entered its final decree on April 4, 1980:

1. Terminating and canceling the lease contract between Lackey and A & P; and

2. Ordering that Lackey recover from A & P “a monthly rental of $3,139.60, from February 24,1979, until this decree becomes final or the defendant voluntarily terminates the lease.”

In a Motion to Correct the Final Decree, A & P pointed out that the court, in its decree, cancelled the lease, but provided also that A & P would continue to pay monthly rent. A & P contended that these provisions were inconsistent and contradictory. The court overruled the motion to correct because complainant’s attorney, O. B. Triplett, Jr., was killed in an automobile accident before there could be a hearing on the motion.

A & P assigns as error:

I. The admission of testimony on pre-lease negotiations to vary the terms of the Lackey — A & P lease violated the parol evidence rule thus the trial court erred in the admission of said evidence.

II. The trial court erred when it overruled the objection of A & P on the grounds of relevancy to the introduction of evidence on a fair rental value for the demised premises for February of 1978.

III. The trial court erred in canceling the Lackey — A & P lease and awarding damages because cancellation of the lease and the award of damages was inappropriate since the lease does not contain a covenant of continuous use thus A & P has not breached the lease.

I.

The court was in error in admitting into evidence parol evidence to contradict, vary, alter, add to or detract from the written lease contract.

At the trial, the chancellor stated:

“These negotiations finally culminated in a written contract which we have before us; it has been introduced into evidence, and, I can read the contract and understand it very clearly, what it says.”

The lease contract is clear and unambiguous; it is'complete on its face. In Sharpsburg Farms, Inc. v. Williams, 363 So.2d 1350 (Miss.1978), this Court said:

The plaintiffs did not charge fraud or mistake. This case would thus appear to fit under the parol evidence rule that:
‘[I]f the writing is complete on its face and unambiguous, parol evidence is not admissible to contradict, vary, alter, add to, or detract from, the instrument. ... ‘in the absence of fraud or mistake.’ ” Allen et al. v. Allen et al., 175 Miss. 735, 741, 168 So. 658, 659 (1936). “In Fuqua v. Mills, 221 Miss. 436, 73
So.2d 113 (1954), this Court, in again defining the parol evidence rule, quoted with approval from Kendrick v. Robertson, 145 Miss. 585, 111 So. 99 (1927):
‘[T]he rule that the terms of a written contract or conveyance cannot be varied or added to by parol evidence is not merely a rule of evidence, but is one of substantive law, and, in measuring the rights of the parties to a written contract or conveyance, which, on its face, is unambiguous and expresses an agreement complete in all of its essential terms, the writing will control. Jones, Commentaries on Evidence, Vol. 3, par. 434; Wigmore on Evidence, Vol. 4, pars. 2400 and 2425.’ 221 Miss, at 450, 73 So.2d at 119.

363 So.2d at 1355.

II.

There was no express covenant in the lease contract for continuous use of the leased premises “for the purpose of a general merchandise business.” Neither could a covenant for continuous use as a general merchandise business be implied. Where a lease provides for percentage rent in addition to a fixed substantial adequate minimum rent, no implied covenant will be inferred. 52 C.J.S. Landlord & Tenant § 502(2) (1968).

$1427.00 per month amounted to $1.25 per square foot for 13,700 square feet of building leased to A & P in 1968. Also, Lackey entered into a 12-year lease with Morgan & Lindsey in 1968 for an annual rental of $1.25 per square foot. Admittedly this was the highest rent received in Forest, Mississippi, in 1968.

Paragraph 25, as amended, of the lease contract, dealing with the removal of fixtures by the lessee; paragraph 26 dealing with assignment; and paragraph 29 dealing with the completeness of the written lease contract, all are express clauses of the contract negating any conclusion that could be drawn that there was an implied covenant of continuous use. It was error to admit testimony as to the fair rental value as of February, 1978.

III.

In Polk v. Gibson Products Co. of Hattiesburg, Inc., 257 So.2d 225 (Miss.1972), in construing a similar lease contract which provided for a guaranteed minimum rental of $1500 per month and also provided a bonus rental of 1 lh% of the annual gross sales in excess of $1,200,000.00, this Court said:

“This Court takes knowledge of the fact that there is nothing in this language which specifically requires the lessees to remain on said premises in said building and to conduct therein a discount business. The substance of the requirements of the lessees is that they must pay the guaranteed minimum rental of $18,000 per year in monthly installments of $1500 each for the use and occupancy of said premises and that said monthly minimum rentals of $1500 must be paid in advance.” 257 So.2d at 228.

There being neither an express nor implied covenant of continuous use, there was no breach of the lease contract by A & P, and the court was in error in terminating and canceling the lease contract.

A & P has tendered to Lackey $4,469.87, “the amount of percentage rental due for the rental year of July 1, 1978, to June 30, 1979,” and Lackey is entitled to that amount, plus $1427.00 per month rent in accordance with the written lease contract.

For these reasons, the decree of the lower court of April 4, 1980, is reversed, and this cause is remanded to the lower court for a proper accounting and distribution of funds paid into the registry of the court in accordance with this opinion.

REVERSED AND REMANDED.

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

LEE, J., takes no part.


text:
    Frank R. BANKS v. Faye Harmon BANKS.
    No. 52511.
    Supreme Court of Mississippi.
    March 18, 1981.
    Rehearing Denied May 27, 1981.
    Joseph E. Lotterhos, Bennett, Lotterhos & Sulser, Jackson, for appellant.
    David W. Clark, Wise, Carter, Child & Caraway, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Michael ZUBATUK v. G.T.E. and/or Zinsco Electrical Products & American Motorists Ins. Co.
    No. 52502.
    Supreme Court of Mississippi.
    March 18, 1981.
    Rehearing Denied May 27, 1981.
    Charles W. Witt, John C. Underwood, Jr., Taylor, Witt & Underwood, Jackson, for appellant.
    Dan McCullen, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

AFFIRMED.


text:
    Linda Kaye K. MOSELEY v. Richard Henry MOSELEY.
    No. 52583.
    Supreme Court of Mississippi.
    April 8, 1981.
    Rehearing Denied May 27, 1981.
    Leonard B. Cobb, Warner, Ray & Cobb, Meridian, for appellant.
    Richard E. Wilbourn, Don 0. Rogers, Wilbourn & Rogers, Meridian, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

AFFIRMED.


text:
    MUNRO PETROLEUM & TERMINAL CORPORATION v. Oliver V. DACEY.
    No. 52604.
    Supreme Court of Mississippi.
    April 8, 1981.
    Rehearing Denied May 27, 1981.
    W. F. Holder, II, Gulfport, for appellant.
    Bobby G. O’Barr, Biloxi, for appellee.
    Before PATTERSON, C. J., SMITH, P. J., and WALKER, J.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

AFFIRMED.


author: LEE, Justice,

text:
    Lawrence Ralph FLORENCE v. STATE of Mississippi.
    No. 52503.
    Supreme Court of Mississippi.
    April 8, 1981.
    Rehearing Denied May 27, 1981.
    Gerald J. Diaz, Jr., Vick & Diaz, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the court.

Lawrence Ralph Florence was found guilty of armed robbery by the Circuit Court of the First Judicial District of Hinds County, Honorable William F. Coleman, presiding. The jury was unable to agree upon the punishment and the trial judge sentenced him to thirty-five (35) years with the Mississippi Department of Corrections, five (5) years suspended, and thirty (30) years to serve, with supervised probation for five (5) years. Florence has appealed here and assigns two (2) errors in the trial below.

On June 13, 1979, the branch office of Mississippi Bank located at Highway 80 and J. R. Lynch Street in Jackson was robbed of twenty-five hundred dollars ($2,500) by a man dressed as a woman, wearing a long-sleeve green dress, earrings, carrying a purse, and armed with a pistol. Later that night, Mrs. Derrean Williams saw a television newscast wherein a description was given of the clothes worn by the robber and she recognized them as belonging to her 17-year-old daughter, Gloria Williams. Another of Mrs. Williams’ daughters verified that the clothes were not in the closet where they were usually kept, and consequently, Mrs. Williams had her son notify the police. When the police arrived, they were given the foregoing information and Mrs. Williams showed them a Polaroid photograph of her 17-year-old daughter and appellant. She further told them that the two were staying at the Summers Hotel on West Pearl. Street. The officers compared the photograph to a mug shot at the police station and were able to identify appellant. His conviction record indicated that he had been involved in a number of law violations.

Upon arriving at the Summers Hotel, the officers ascertained that appellant was registered in a room under the name of “Joe Winter.” They went to that room, knocked, and appellant came to the door. He was asked whether his name was Lawrence Florence and he replied in the negative, stating that he was Joe Winter. The officers, however, easily recognized him as Lawrence Florence. One of the officers looked into the room for Gloria Williams, saw an envelope on the floor in plain view, which, when examined, contained marijuana. The officers then arrested and searched appellant. The search revealed a receipt for purchase of a car in the sum of six hundred ninety-five dollars ($695.00) dated June 13, 1979, a receipt for payment of four hundred fifty dollars ($450.00) to local attorneys for services rendered dated June 13,1979, and a set of automobile keys. Gloria Williams was found hiding in the bathroom and was also arrested. The individuals were placed in separate patrol cars while one of the officers, lies, gathered up appellant’s belongings and went to the hotel parking lot in search of appellant’s automobile. He began to inventory the contents of the vehicle, recording them on an inventory slip carried for that purpose. lies found a woman’s black purse in the trunk of the automobile, which he opened and found to contain six hundred seventy-five dollars ($675.00). It was later identified, by serial numbers, as a part of the stolen money.

When the robber left the bank, one of the female tellers ran to the window, observed him enter a white automobile, and drive away. She noted the tag number, and the automobile was later found abandoned in the parking lot at Metrocenter. The clothing worn by the robber and a pillowcase containing five hundred dollars ($500.00) of the stolen money were found at the Metro-center in the general proximity of the place where the automobile had been abandoned. The teller identified the vehicle and the clothing and at trial, identified the appellant as the robber. Gloria Williams testified for the State that appellant told her he was going to rob a bank and persuaded her to obtain the female clothes for him.

I.

Did the lower court err in failing to suppress the evidence because of the illegal arrest of appellant?

The appellant contends that the officers did not have probable cause to arrest him. In order to arrest on probable cause without a warrant, it is necessary for the officers to determine (1) that a felony has been committed, and (2) that reasonable grounds exist to suspect and believe that the person to be arrested has committed the felony. Hurst v. State, 240 So.2d 273 (Miss.1970); Powe v. State, 235 So.2d 920 (Miss.1970).

In Michigan v. Defillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), the United States Supreme Court held the probable cause which will sustain a war-rantless arrest is not required to reach the level of certainty that the person arrested is guilty of the crime. It must be stronger than mere suspicion or belief held by the officers, but various factors may be taken under consideration in order to establish probable cause. The Court defined “probable cause” as follows:

“This Court repeatedly has explained that ‘probable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. See Gerstein v. Pugh, supra, [420 U.S. 103] at 111, 95 S.Ct. 854 [861], 43 L.Ed.2d 54; Adams v. Williams, supra, [407 U.S. 143] at 148, 92 S.Ct. 1921 [1924], 32 L.Ed.2d 612; Beck v. Ohio, supra, [379 U.S. 89] at 91, 85 S.Ct. 223 [225], 13 L.Ed.2d 142 [3 Ohio Misc. 71, 31 Ohio Ops.2d 80]; Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329 [333], 3 L.Ed.2d 327 (1959); Brinegar v. United States, supra, [338 U.S. 160] at 175-176, 69 S.Ct. 1302 [1310-11], 93 L.Ed. 1879; Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280 [288], 69 L.Ed. 543 [39 A.L.R. 790] (1925).” 443 U.S. at 37, 99 S.Ct. at 2632, 61 L.Ed.2d at 349-350.

In Jones v. State, 358 So.2d 414 (Miss.1978), quoting from McCollum v. State, 197 So.2d 252 (Miss.1967), we said:

“In McCollum, this Court set out the following statements found in annotation to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, 1736-1739 (1959):
‘Probable cause’ or ‘reasonable grounds’ justifying an arrest without warrant exists where the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a narcotics offense has been or is being committed. It is not required that probable cause be established solely by facts within the personal knowledge of the arresting officer. A combination of information and personal knowledge may raise the inference beyond opinion, suspicion, and conjecture to reasonable probability. All information in the agent’s possession, fair inferences therefrom, and observations made by him are pertinent.’ 197 So.2d at 255.” 358 So.2d at 416.

We are of the opinion that, under the facts and law in this case, the officers had probable cause to arrest appellant since (1) they had knowledge that an armed robbery had been committed, (2) they were informed that appellant was connected to the disguise used in the robbery, (3) they had knowledge of prior convictions of appellant for similar crimes, and (4) they had a substantial identification of appellant from photographs.

II.

Did the lower court err in failing to suppress evidence obtained from appellant’s personal repository of possessions without a search warrant?

Officer lies conducted a search of appellant’s car shortly after his arrest, while the vehicle was situated in the hotel parking lot. Officer lies referred to it as an inventory search contemporaneous with impounding the vehicle. Among other things, lies discovered in the trunk of the vehicle a woman’s black purse which, when opened, revealed $675.00 later identified as having been stolen from the bank. Appellant contends that opening the purse without a warrant was a violation of his Fourth Amendment rights.

In United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), Federal agents, acting without a warrant, arrested a suspect and seized a double-locked footlocker believed to contain illicit drugs. After taking the suspect and locker to a Federal building, they opened the footlocker without consent or warrant. Marijuana found in the locker was suppressed as evidence at trial. The United States Supreme Court affirmed the suppression and held that (1) the respondents had an expectation of privacy as to the contents of the footlocker, thus subjecting the search to the Fourth Amendment requirement that it be reasonable, (2) because the search would not fall within any of the recognized exceptions to a warrant requirement, the general rule applied that a warrantless search was unreasonable per se; and (3) the appropriate sanction of the agents’ failure to comply with constitutional standards was the suppression of the evidence obtained by the illegal search.

Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), is a case factually similar to Chadwick and the present case. There, pursuant to confidential information, police officers surveilled, and later arrested, a suspect some few moments after he left the Little Rock airport in a taxicab. They seized a green suitcase belonging to the suspect and found in the trunk of the taxi. The suitcase was opened and revealed marijuana for which the appellant was convicted upon trial. The Arkansas Supreme Court reversed and the United States Supreme Court, citing Chadwick, affirmed, holding that in the absence of exigent circumstances, police must obtain a warrant before searching luggage taken from a vehicle.

The State relies upon the rule announced in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and contends that the police officers here were making a routine inventory of the contents of the vehicle, a reasonable procedure not a violation of the Fourth Amendment. The accused’s automobile in Opperman had been impounded for multiple parking violations and the police, following standard procedures, inventoried the contents of the car. In so doing, they discovered marijuana in the glove compartment. Opperman was subsequently arrested and convicted for possession of the contraband. His motion to suppress the evidence from the warrant-less inventory was denied. The State Supreme Court reversed on the ground that the evidence had been obtained in violation of the Fourth Amendment. In reversing that decision, the United States Supreme Court held that the police procedures followed there did not involve an unreasonable search in violation of the Fourth Amendment, that the expectation of privacy in one’s automobile is significantly less than that in one’s home or office. The Court further held that when vehicles are impounded, police routinely follow caretaking procedures by securing an inventory of the car’s contents, and such procedures are reasonable under the Fourth Amendment. It was commented that the standard practice was followed in the Opperman case and there was no suggestion of any investigatory motive on the part of the police.

The Eighth Circuit Court of Appeals addressed the instant question in United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978). There the defendant was arrested, handcuffed and taken to jail. While in jail, locked in a cell, his briefcase was searched without a warrant. It was in the exclusive control of the police, at a time when there was no reason to believe that any evidence in the briefcase might be destroyed, or that it contained explosives or other dangerous instrumentalities. In holding the search constitutionally invalid, the Court said:

“To permit this search under the inventory search rationale would extend that rationale beyond the scope contemplated by the Court in Opperman. See Note, Criminal Procedure, supra at 95. Luggage can be more readily reduced to possession and secured than an automobile. There is a greater expectation of privacy in the contents of luggage than in an automobile. Moreover, the valid governmental interests served by an inventory search could have been satisfied here by inventorying the locked briefcase as a unit. There was no necessity to open the briefcase and inventory its contents. ... The only governmental interest that would be served by permitting this war-rantless search would be to relieve the law enforcement officers of the inconvenience of obtaining a warrant before conducting an investigatory search.... Mere convenience is not a sufficient governmental interest to override the requirement of the Fourth Amendment warrant clause. Mincey v. State of Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In sum, the inventory search exception cannot be relied upon to justify the warrantless investigatory search of Schleis’s briefcase. South Dakota v. Opperman, supra, 428 U.S. at 376, 96 S.Ct. 3092.” 582 F.2d at 1173.

The record here does not indicate to what extent the purse was latched or closed. The evidence showed the following:

(1) An in-court identification of Florence as the robber given by the bank teller who was robbed.
(2) Testimony of two tellers that Florence was seen driving away from the bank in a car later abandoned at the Metrocen-ter, seized by the police, and determined to be the car used in the robbery.
(3) The clothing worn by the robber was the same given to Florence by his girlfriend.
(4) Florence told his girlfriend he was going to rob a bank and asked her to supply the women’s clothing as a disguise, which she did.
(5) The clothing used in the robbery and a pillowcase containing $500.00 identified as a part of the stolen money were found at the Metrocenter in the general proximity of the abandoned car previously used by Florence.

The appellant neither testified nor introduced any witness in his defense. The evidence was uncontradicted, overwhelming and beyond reasonable doubt that appellant committed the crime with which he was charged. The admission in evidence of the black purse and money therein could not have contributed to appellant’s conviction and could not have prejudiced him. Therefore, we think it unnecessary to decide whether or not the search of the purse was illegal.

In Austin v. State, 384 So.2d 600 (Miss.1980), in discussing a constitutional violation, we said:

“However, we have carefully considered the entire record, and, in view of the overwhelming evidence of appellant’s guilt beyond reasonable doubt, we hold that the error was harmless.1 See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
The judgment of the lower court is affirmed.” (Footnote omitted). 384 So.2d at 601.

There being no reversible errors in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

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

      . He wore the clothes in committing the robbery.

      . Opperman is distinguished from Chadwick and Sanders since the contraband was found in an unlocked glove compartment in the Opper-man car, while in Chadwick and Sanders it was found in a locker/suitcase in the locked trunk of the automobiles.


author: WALKER, Justice,

text:
    R. L. NETTERVILLE v. LEAR SIEGLER, INC., et al.
    No. 52531.
    Supreme Court of Mississippi.
    April 29, 1981.
    Rehearing Denied May 27, 1981.

      Robert L. Netterville, Natchez, for appellant.
    Everette Truly, Adams, Forman, Truly, Ward, Smith & Bramlette, Natchez, for ap-pellees.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This cause is on appeal from the Circuit Court of Adams County, Mississippi, which sustained a general demurrer to appellant R. L. Netterville’s declaration charging libel and slander, invasion of privacy, and abuse of process against Lear Siegler, Inc., its attorney Mr. Charles W. Stoll of Hollywood, California, and others. The declaration alleges that the appellees filed a complaint against the appellant with the Mississippi State Bar Association criticizing certain actions of appellant in his representation of a widow and four children for the death of their husband and father in a products liability case. Mr. Netterville contends that the complaint filed against him was without merit, was malicious and was done for the sole purpose of enhancing Lear Siegler’s defense and position in the products liability case. He contends that the defendants used the bar complaint for an illegal purpose and design as set forth in Count I, Paragraph 12 of the declaration which states:

That said acts were a means to use criminal process in order for the said defendants ‘to accomplish an ulterior purpose for which it was not designed.’ ... That said acts on the part of the defendants herein, both in concert and in conspiracy, were a form of extortion in which a lawfully used process was perverted to an unlawful use.... That none of the acts complained of herein on the part of said defendants were made in good faith, but were all done with an ulterior motive so as to prevent the said R. L. Netterville from progressing in a tort action against the said defendants.

The alleged slanderous, malicious and willful conduct of the defendants is set forth in Exhibit “A” to the declaration, being letters dated May 4,1979 and May 11, 1979.

The letter of May 4, 1979, was addressed to G. Stuart Handy, Esquire of Handy, Fitzpatrick, Gwin, Blough & Lewis, Attorneys at Law, P. 0. Box 1344, Natchez, MS. 39120. In that letter Mr. Stoll inquired of Mr. Handy, who was co-counsel with Mr. Stoll, information about the proper Mississippi procedure for filing a formal complaint against Mr. Netterville “for his directly contacting Mr. Griffiths and attempting to contact Mr. Mugler, who [he alleged] are officers and employees of Royal Industries, Inc., our client, without receiving the express consent of either you or I before making such direct contact.” The letter further complained that “. .. it is apparent that Mr. Netterville taped his conversation with Mr. Griffiths, as evidenced by the transcript attached to his letter of April 23, 1979. He at no point advised Mr. Griffiths that this conversation was being taped and did not initially identify himself as an attorney representing a party adverse to the Hutchinson Division of Royal Industries, Inc. ...”

The letter of May 11,1979, was addressed to the Mississippi State Bar, 101 Realtors Building, 620 North State Street, Jackson, MS. 39201, and directed to the attention of Chairman, Complaints Committee. That letter contained basically the same complaints, hereinabove quoted, made to Mr. Handy. The letter concluded with the statement, “If, ... the conduct described above is prohibited by the Mississippi Bar, I will wish to file a formal complaint and would appreciate your advice.”

Mr. Stoll subsequently filed the following complaint with the Mississippi State Bar:

I, Charles W. Stoll, do hereby file with the Mississippi State Bar, a complaint against Mr. Robert L. Netterville, Natchez Office Bldg., Natchez, MS. 39120.
The facts of my complaint are: As set forth in my letter of May 11, 1979 addressed to the Mississippi State Bar, including attachments thereto.
The facts in this complaint are true and correct to the best of my knowledge.

This complaint was duly executed and sworn to as prescribed by law.

Mr. Stoll’s complaint was duly filed, investigated and prosecuted according to the procedures set out in Mississippi Code Annotated sections 73-3-313 et seq. (Supp. 1980) and the rules and regulations formulated by the Committee on Complaints. Upon a final adjudication of that matter, this Court held, among other things, that the complaint filed by Mr. Stoll against Mr. Netterville was wholly without merit or justification and ordered same dismissed.

In Count II, Paragraph 13 of his declaration out of which the present appeal arose, Mr. Netterville states:

That on or prior to May 11,1979, the said defendants in contriving and wickedly and maliciously intending to injure plaintiff did falsely, wickedly, and maliciously and intentionally and willfully print, publish and did cause to be circulated around the State of Mississippi the words that disbarment proceedings had been filed against the said R. L. Netterville, the plaintiff herein.

Mr. Netterville contends, inter alia, on this appeal that the malicious publication was made on May 11, 1979, prior to a formal complaint being filed with the Bar on May 21, 1979, and, therefore, is not privileged. The appellees contend that the demurrer was properly sustained by the Circuit Court for the following reasons:

(1) That Mississippi Code Annotated section 73-3-345 (Supp.1980) grants the defendants absolute immunity from suit by the plaintiff.

(2) That the defendants in this case have an absolute privilege at common law which precludes any recovery by appellant.

(3) That no libel or slander suit to which appellees do not have immunity or an absolute privilege is alleged.

(4) That no cause of action by abuse of process will lie against defendants in this ease, citing Mississippi Code Annotated section 73-3-345 (Supp.1980).

(5) That no cause of action based on invasion of privacy is alleged or sustainable.

Two statutes pertinent to this case are Mississippi Code Annotated section 73-3-345 (Supp.1980) and section 73-3-343 (Supp. 1980) which read as follows:

§ 73-3-345. Immunity from civil suit predicated on disciplinary proceedings.
All complaints filed pursuant hereto shall be absolutely privileged, and no lawsuit predicated thereon may be instituted, and each person, firm, association or legal entity filing- such a complaint shall be immune from any civil suit predicated thereon. The board of commissioners, the committee on complaints, the executive director, the complaint counsel, the complaint tribunals, and their assistants, staff and employees shall be immune from civil suit for any conduct arising out of the performance of their official duties. Every person shall be immune from civil suit for all of his sworn or written statements made or given in the course of any investigation, investigatory hearing, formal hearing or review proceedings held and conducted under these disciplinary rules.
§ 73-3-343. Confidentiality of matters under investigation and proceedings— penalties.
All disciplinary agencies of the court, all court reporters, clerks, witnesses and parties are strictly enjoined to keep and maintain confidential all things concerning the matters under investigation and the proceedings thereon; provided, however, all proceedings before any complaint tribunal and in the court may be public if requested by the accused attorney .... Violation of this section or any part hereof shall be a misdemeanor punishable by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not more than thirty (30) days or by both. (Emphasis added).

A third statute which should be mentioned is Mississippi Code Annotated section 73-3-301 (Supp.1980) which recognizes that attorneys in this State are subject to the exclusive and inherent disciplinary jurisdiction of the Supreme Court and the disciplinary agencies established and designated by statute. See also Mississippi Code Annotated section 73-3-373 (Supp.1980).

Disciplinary proceedings against an attorney are judicial in nature and absent a statute, under the common law, any person involved in the proceedings, whether a party, witness, counsel, or judge is accorded absolute immunity so long as the statements made or documents filed are reasonably related to the judicial inquiry. Statutes dealing with this subject only have such efficacy and force that do not constitute a serious encroachment into the exclusive domain of the judiciary. As it has been aptly put, “... disciplinary proceedings are ... an integral part of the functioning of the judicial branch of government and the process includes the filing of an informal complaint by one who wishes to charge an attorney with unprofessional conduct.”

The courts can be fully effective in serving the public only if the people see them as a symbol of impartial judgment. We regard it as important, therefore, that there should be no impediment to free criticism of the bench and bar lest it be interpreted by the public as a veil to hide judicial vices.

Although it may place a burden on the attorney who is unjustly accused of unethical conduct, the proper administration of justice requires that there be a forum where a layman may have his complaint heard, investigated, and, if necessary, judicially determined. Such a complaint must be privileged, or one who felt aggrieved by his lawyer would hesitate to complain for fear that he might face a damage suit if he failed to prove his complaint. Such a fear, whether it was groundless or not, would reduce the bar’s effectiveness in policing its own ranks.

Therefore, any communication, the purpose of which is to state a complaint in the proper forum, is absolutely privileged and there can be no suit against the person who made the complaint. Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594, 77 A.L.R.2d 481 (1959).

We now hold that, under the common law as well as our statute, any person filing a complaint in accordance with our disciplinary statutes and rules is accorded absolute privilege and no lawsuit predicated thereon may be instituted. Any person or legal entity filing such complaint shall be immune from any civil suit predicated thereon, so long as the statements are made within the course and framework of the disciplinary process and are reasonably relevant to the complaint. And, unless it appears from the face of the pleadings that the communication complained of exceeds the purpose of stating a complaint in the proper forum, it is absolutely privileged, and there can be no trial of the underlying motives of the defendant in instituting the complaint. This immunity shall extend to any cause of action, whatever the name, be it libel and slander, invasion of privacy, abuse of process or other.

The next question is whether Mr. Stoll’s letter to the Chairman of the Complaints Committee of the Mississippi State Bar, dated May 11, 1979, was reasonably relevant to and connected with the filing of his formal complaint against Mr. Netter-ville. We hold that it was. Mr. Stoll’s letter of May 11, 1979, was designed to obtain information relative to the filing of the formal complaint with the Complaints Committee and is, under the statute and common law, accorded immunity because it was directly related and pertaining to the filing of the formal complaint. See Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594, 77 A.L.R.2d 481 (1959).

Having held that the complaint filed was absolutely privileged, the next question presented is whether the immunity from suit accorded such privilege extends to one who thereafter maliciously publishes and causes said complaint or information contained therein to be circulated about the State of Mississippi to persons not authorized by the statute and regulations to receive same. We think not. However, under our disciplinary procedures, certain persons throughout the State are entitled to receive these complaints as a matter of routine. Thus, an allegation in a bill of complaint that false and defamatory matter was maliciously circulated about the State, etc., is not sufficient; it must go further and allege that the matter was circulated to persons who were not entitled to receive it.

The appellant was given the opportunity to amend his declaration, but declined to do so and the court properly dismissed the cause.

The case of Pride v. Quitman County Voters League, 226 So.2d 735 (Miss.1969) cited by appellant is distinguishable on the facts and not applicable to the situation now before us.

We would point out further, however, that although immunity from being sued is accorded anyone, attorney or layman, who files a complaint with the State Bar, attorneys may nevertheless be disciplined by the Complaints Committee for maliciously filing groundless complaints without having at least an arguable justification for doing so.

For the reasons cited above, the judgment of the circuit court is affirmed.

AFFIRMED.

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

      . § 73-3-301. Any attorney regularly admitted to practice law in the State of Mississippi or any attorney specially admitted to practice by a court of this state or any individual admitted to practice as an attorney in any other jurisdiction who regularly engages in the practice of law within this state as house counsel to corporations or other entities, counsel for governmental agencies, out-of-state lawyers admitted or permitted to practice law in this state by comity, bar examination or otherwise are subject to the exclusive and inherent disciplinary jurisdiction of the Supreme Court of Mississippi and the disciplinary agencies hereinafter established and designated; provided, however, nothing herein contained shall be construed to deny to any other court such powers as are necessary for that court to maintain control over practice in and proceedings conducted before it, such as the power of contempt, nor to prohibit local bar associations from censuring, suspending or expelling their members from membership in such local bar association.

      . Section 73-3-343 quoted earlier.

      . Mississippi Code Annotated section 73-3-303 (Supp.1980) designates as agencies of the Court for disciplinary purposes the following:
      (1)The board of commissioners, including the executive director and complaint counsel;
      (2) The committee on complaints; and
      (3) The complaint tribunal.
      Any or all of these may legitimately receive copies of complaints filed against attorneys.


text:
    Pleas SCOTT, Jr. v. STATE of Mississippi.
    No. 52580.
    Supreme Court of Mississippi.
    May 6, 1981.
    Rehearing Denied May 27, 1981.
    Jack R. Jones, III, Taylor & Whitwell, Southaven, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Circuit Court, Leflore County; Webb Franklin, Judge.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Kathy BOOKER v. STATE of Mississippi.
    No. 52095.
    Supreme Court of Mississippi.
    May 13, 1981.
    Firnist J. Alexander, Jr., Brown, Alexander & Sanders, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P.J., and WALKER and BROOM, JJ.
   Appeal from Circuit Court, Covington County; L. D. Pittman, Judge.

AFFIRMED.

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

BOWLING, J., took no part.


text:
    Walter Richard SMITH v. Wilsie SMITH.
    No. 52497.
    Supreme Court of Mississippi.
    May 13, 1981.
    Eldon L. Bolton, Jr., Gulfport, for appellant.
   Appeal from Chancery Court, Harrison County; John S. Morris, Judge.

Robert W. Smith and Thelma Schwartz Zinner, Biloxi, for appellee.

Before ROBERTSON, P. J., and SUGG and HAWKINS, JJ.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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


text:
    Mary P. HARTUNG v. STATE of Mississippi.
    No. 52696.
    Supreme Court of Mississippi.
    May 13, 1981.
    Robert D. Jones, Martin & Jones, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

AFFIRMED.


text:
    Margaret MATHIS v. Robert MATHIS.
    NO. 52722.
    Supreme Court of Mississippi.
    May 13, 1981.
    Ed W. Jenkins, Comer & Jenkins, Boone-ville, for appellant.
    William L. Sharp, Sharp & Fisher, Corinth, for appellee.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   Appeal from Chancery Court, Alcorn County; George F. Adams, Chancellor.

AFFIRMED.


text:
    Johnny R. T. BRINSTON et al. v. CITY OF JACKSON, Miss., a Municipal Corporation.
    No. 52647.
    Supreme Court of Mississippi.
    May 13, 1981.
    Lee B. Agnew, Jackson, for appellants.
    Howard C. Ross, David L. Love, John E. Stone, Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

AFFIRMED.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Roy ANDREWS v. STATE.
    4 Div. 824.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Bill Kominos, Ariton, for appellant.
    Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannon, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty under an indictment charging him with burglary of “a shop, store or warehouse, the property of Cathart Jewelers, Inc., a corporation, in which goods, wares, merchandise or other things of value were kept for use, sale or deposit.” The court fixed his punishment at imprisonment for three years and sentenced him accordingly.

According to the undisputed evidence, about 1:30 A.M. June 27, 1979, defendant was arrested by officers responding to a burglary alarm while defendant was on the roof of Cathart Jewelers, Inc., a corporation, soon after he had cut a hole in the tin roof. Officers testified that an entry had been made through the roof, by aid of a rope, to the floor of the ceiling and that a hole had been made in the ceiling by the removal of or damage to a panel thereof.

Officer Bernard Shug of the Enterprise Police Department was the first officer to arrive at the scene in response to the police dispatch by radio. According to his testimony, he stopped his automobile in front of the store of Cathart Jewelers, looked in the store, which was in a one-story building, and saw through the plate glass front thereof “display cases” and “a black male inside.” He said the man was hiding behind an upright display case, but from where the witness was he “could see his face and a portion of his right shoulder.” He called for a “backup” and promptly thereafter other officers arrived. After searching the premises, observing that the store was locked, the officers procured a ladder and went to the roof. The defendant was found on the roof, either of the particular store or of one of the adjoining stores or shops forming the complex of stores or shops with roofs on the same level in the particular locality. A warning shot of a pistol was fired by one of the officers, and thereupon defendant started lying down on the roof. He was taken into custody, and, upon observing that there were cut places on his arm and that he was bleeding, the officers had him transported to Coffee General Hospital where he was treated. Officer Shug further testified that the man he saw on the inside of the store hiding was the same man, the defendant, who was taken into custody on the roof of the building.

Defendant testified that he was assisting two white men who, against defendant’s will, had threatened to kill him unless he aided them in their expressed and manifest purpose of burglarizing the store. He said that both of them were with him at the time he cut the hole in the roof. He was unable to identify them. He had never known them before, he did not know their names and he could give the officers no information whereby they could be located or apprehended.

Our brief summary of the evidence should be sufficient for a correct determination of the contention of appellant that there was not- substantial evidence of defendant’s guilt. The conflict between defendant’s testimony and the testimony of Officer Shug is of itself sufficient to present a jury issue as to whether defendant had effectuated a breaking and entry into the store. As to the requisite of felonious intent, appellant relies upon testimony of the defendant to the effect that he was acting under duress.

The testimony of the defendant is not to be capriciously disregarded, but a jury is not required to accept it even though it is undisputed, if the jury, upon a consideration of all the evidence, can reasonably conclude that the defendant’s testimony is untrue. Kemp v. State, 278 Ala. 637, 179 So.2d 762 (1965); Wall v. State, 49 Ala.App. 285, 270 So.2d 831 (1972); Cook v. State, 46 Ala.App. 663, 248 So.2d 158 (1971); Flint v. State, Ala.Cr.App., 370 So.2d 332 (1979). The interest of the defendant is to be considered in determining the weight to be given to his testimony. Pitts v. State, 140 Ala. 70, 37 So. 101 (1904); Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975); Kontos v. State, Ala.Cr.App., 363 So.2d 1025 (1978).

The only other assertions of error relate to the rulings of the trial court adverse to defendant’s plea of former jeopardy. As no question is here raised as to the adequacy of the presentation to the trial court of the question whether defendant’s plea of former jeopardy could be sustained, we now consider whether the trial court was in error in concluding that it was not sustainable.

The transcript shows that on October 30, 1979, about five months before the trial in the instant case commenced, the court entered an order of dismissal or nolle prose-qui, on motion of the State, in Case No. 79-49 of State of Alabama v. Roy Andrews (this appellant), then pending in the same trial court as the trial court in the instant case; that thereafter the indictment in the instant case was returned. Although the transcript in the instant case does not contain a copy of the record in the previous case and does not show with precision the language of the indictment in the previous case, it is reasonably clear that the only difference between the indictments in the two cases is that in the previous case the name of the alleged entity owning or occupying the property allegedly burglarized was stated, “Cathart Jewelers, a corporation,” while, as shown above, in the indictment in the case now under review, it was stated, “Cathart Jewelers, Inc., a corporation.”

The transcript further shows that in the previous case, immediately after a jury had been selected to try the case, it was given a recess for lunch, and thereupon there was a hearing out of the presence of the jury, which commenced as follows:

“MR. FOLMAR: Your Honor, the State would request at this time a consent to amend the indictment to state the correct name of the victim.
“THE COURT: Let the record show we are out of the presence and hearing of the jury and there has been nothing done here except to strike a jury and that we are out of their presence and hearing. “MR. MARSH: [defendant’s attorney at the time]: We would object to any amendment of this indictment... .

According to the transcript, there were then several pages of colloquy among the court and counsel for the respective parties, in which defendant’s attorney firmly refused to consent to an amendment of the indictment as requested by counsel for the State, saying that defendant was ready to try the case against him. When the consent was not obtained, counsel for the State moved for a dismissal, and defendant strongly objected to the dismissal, saying that defendant was ready to try the case against him, that a dismissal and a renewal of the prosecution by a new indictment would constitute the denial of defendant’s right to a “speedy trial” and would subject defendant to double jeopardy. .

It appears from the transcript that in granting the State’s motion to dismiss the prosecution in the former case, the court was relying upon Code of Alabama 1975, § 15-8-91, that provides for a dismissal of an indictment when defendant will not consent to an amendment of the indictment when there is “a variance between the allegations of the indictment and the proof” and that a new indictment can then be “ordered to be preferred.” Appellee contends that the action of the court was authorized by § 15-8-91. To this, appellant responds that no evidence was even taken in the case, and for that reason there was no variance between the indictment and the evidence. Appellant is correct as to the express language of the Code Section. Whether the Code Section applies impliedly or by analogy in a case in which no evidence is presented does not seem to be an issue on this appeal, and we do not attempt to decide the same. We note, however, that notwithstanding the fact that neither party seems to raise the point, there probably, if not certainly, was no necessity for the indictment to be amended as desired by the State so as to state the name of the owner or occupier of the store burglarized as the same as it is stated in the second indictment. The evidence in the case sub judice shows that the name of the owner or occupant is precisely as stated in the indictment; it is different from the name stated in the first indictment in that the first indictment did not include in the name the term “Inc.” That situations might arise at times, by reason of other legal entities with similar but distinguishing names, in which a material variance between the indictment and proof is found, it is our opinion that no material variance was involved, either actually or prospectively, in the first prosecution. It was not a situation like that involved in Irvin v. State, 44 Ala.App. 101, 203 So.2d 283, 288 (1967), in which a material variance was found between the charge that defendant “defrauded John C. Hodges DBA A & P Tea Co.” and evidence that the legal entity actually defrauded was “The Great A & P Tea Company, Inc.” That no material variance was involved in the first prosecution of the appellant herein is indicated by the following in Irvin, supra:

“In Clonts v. State, 42 Ala.App. 287, 161 So.2d 155, we said, per Johnson, J.: ‘ * * * Evidence taken at the trial of this cause proves that the ownership of the goods was vested in a corporation. When the indictment alleges the property to be owned by one party and the evidence proves the owner to be another party, there is a fatal variance between the allegations and proof.’
“ ‘Inc.’ connotes a corporation. Thus, in Indian Refining Co. v. Royal Oak Co., 102 Cal.App. 710, 283 P. 856, we find:
“ ‘ * * * it has been held that the abbreviation “Inc.,” means “incorporated” and is equivalent to “(a corporation.)” Goldberg, Bowen & Co. v. Dimick, 169 Cal. 187, 146 P. 672. On the same reasoning, the words “Indian Refining Co., Inc.,” as used in the complaint herein, are equivalent to “Indian Refining Company (a corporation.)” * * * ’ ”

Notwithstanding our view just expressed, we do not agree with appellant that his plea of former jeopardy should have been sustained, for the reason that defendant was never placed in jeopardy in the first case. The jury had not been sworn; no evidence had been taken. Jeopardy begins when the jury has been empan-elled and sworn, and the indictment has been read or stated to the jury and the defendant has pleaded to the indictment. Murray v. State, 210 Ala. 603, 98 So. 871 (1924); Spencer v. State, 48 Ala.App. 646, 266 So.2d 902 (1972); Garsed v. State, 50 Ala.App. 312, 278 So.2d 761 (1973); Simpson v. State, Ala.Cr.App., 354 So.2d 317, cert. denied, Ex parte Simpson, Ala., 354 So.2d 324 (1977).

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by' Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.