text:
    HOTEL DIEU et al. v. Erroll G. WILLIAMS et al.
    Nos. 12101, 12102.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1981.

      Otto B. Schoenfeld, Denechaud & Dene-chaud, New Orleans, for plaintiffs-appellants.
    William J. Guste, Jr., Atty. Gen., Louis M. Jones, Robert L. Danner, Jr., Asst. Attys. Gen., Dept, of Justice, Salvador Anzelmo, City Atty., Joseph N. Naccari; Asst. City Atty., New Orleans, for defendants-appel-lees.
    Before REDMANN, SCHOTT and KLIE-BERT, JJ.
   REDMANN, Judge.

The question in this case is whether a nonprofit hospital corporation generally exempt from taxation of its property is subject to property taxation upon part of its land and a medical office building and parking facility it built thereupon (through an alter-ego corporation). The answer involves construing, for the first time, the general exemption provided by La.Const. 1974 art. 7 § 21(B)(1) and the limitation on the exemption provided by the last paragraph of § 21(B).

Those provisions read:

(B)(1) Property owned by a nonprofit corporation or association organized and operated exclusively for religious, dedicated places of burial, charitable, health, welfare, fraternal, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or member thereof and which is declared to be exempt from federal or state income tax;
* * * * * *
None of the property listed in paragraph (B) shall be exempt if owned, operated, leased, or used for commercial purposes unrelated to the exempt purposes of the corporation or association.

We conclude that the language of art. 7 § 21(B)(1) will not support any other grammatical construction than that it exempts all “[p]roperty owned by a nonprofit corporation” which corporation (not which corporation’s property) is “organized and operated exclusively” for specified benevolent purposes (including health purposes). It is only the last paragraph of § 21(B) that reduces the universality of that exemption, and that last paragraph denies the exemption only to property “owned, operated, leased or used for commercial purposes unrelated to the exempt purposes of the corporation ....”. We conclude that the providing of medical office (and pharmacy and laboratory) spaces and parking space, in the immediate vicinity of a nonprofit hospital, by the hospital either directly or through a related nonprofit corporation created for that purpose, is not a “commercial purpose unrelated to the exempt purposes” of a hospital. We therefore reverse.

Facts

A hospital named Hotel Dieu has existed in New Orleans for over 100 years. In 1912 the hospital became a non-profit corporation, now named “Hotel Dieu,” whose members are the West Central Provincial Council of the Daughters of Charity of St. Vincent de Paul. Hotel Dieu also operates, in conjunction with the hospital, a school of nursing and conducts, in cooperation with Louisiana State University, medical, educational and research projects as well as residencies and internships. Several years ago a new building was constructed for the hospital, adjacent to its old building. The old building was thereafter demolished, leaving an area of vacant land lying near the central business district of New Orleans. Hotel Dieu decided to erect a building (the Seton Professional Building here involved) upon that land “as a support facility for Hotel Dieu Hospital” to provide office space for doctors on the hospital’s medical staff (as well as a pharmacy and snack bar) and to provide parking space for both the hospital’s and the office building’s purposes.

For that reason in July, 1974, Hotel Dieu’s administrator, associate administrator, comptroller and “one other member who shall be a member of the religious community of the Daughters of Charity of St. Vincent de Paul in residence at Hotel Dieu Hospital .. . selected by the other three ex-officio members” formed with themselves as its only members (a charter amendment in August 1978 expanded membership) a non-profit corporation named “Seton Professional Building, Inc.”

Hotel Dieu then “leased” its vacant ground to Seton for $1 yearly rent plus any excess of income over costs Seton might realize from renting the building. Other provisions of this “lease” indicating the fact that Seton was nothing more than the agent of Hotel Dieu include the right granted to Hotel Dieu at any time, upon 15 days’ notice, “to purchase all of the assets of [Seton], . . . for which the consideration shall be, the assuming of all debts of Seton ... by Hotel Dieu, without further or other consideration of any kind.” (Hotel Dieu is also, under Seton’s corporate charter, the nonprofit corporation to whom Seton’s net assets go upon voluntary dissolution.)

Upon that leased land the Seton Professional Building was built in 1975 (financed, appellants’ brief avers, by the Daughters of Charity). The building has been only 70 to 80% tenanted. As of December 31, 1979 there were 11 leases for doctors’ private offices, one for the “L.S.U. Clinic” (the private practice of a group of faculty members of Louisiana State University medical school), one for a medical laboratory, one for the general office of the New Orleans Academy of Ophthalmology, one for a pharmacy and one (2,309 sq. ft., 3.72% of the building) for a restaurant. Most of the doctors (including the L.S.U. doctors) are on the Hotel Dieu medical staff (which means only that they are authorized to admit patients to Hotel Dieu; they may be on other hospital staffs, but 90% of the private physician tenants send all and the other 10% send a substantial portion of their patients for hospitalization to Hotel Dieu). The offices in the Seton building serve, nevertheless, as the offices in which the tenant physicians see all their patients.

Discussion

We have previously stated our construction of the 1974 Constitution’s pertinent provisions. That construction is supported by VIII Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts. The very examples of purposes not refused exemption by the language “commercial purposes unrelated to the exempt purposes” were a pharmacy, a pathology or x-ray laboratory, and a refreshment stand in a hospital. An example of a purpose refused exemption by the language was “if that hospital . . . has a parking lot downtown- — five blocks away [from the hospital] — then they are in an unrelated business activity .. . taxable for ad valo-rem tax purposes.” (P. 2025.) The context makes it clear that the location of the parking lot where it would not serve the hospital was the decisive factor. (“That parking lot downtown has nothing to do with the activities, the exempt purpose” of the hospital.) Furthermore, the context makes it clear that the delegates understood the basic exemption of the specified nonprofit corporations’ property was of all their property-

The 1974 Constitution’s system of exempting all property (with exceptions) of specified non-profit corporations was a change from the 1921 Constitution’s exempting specified property in art. 10 § 4, para. 2:

Places of religious worship . . .; places of burial; places devoted to charitable undertakings . . .; schools and colleges; athletic or physical culture clubs . . . being non-profit . . .; but the exemption shall extend only to property .. . used for the above mentioned purposes, and not leased for profit or income.

The 1921 language thus granted the property exemption to specified properties, with the consequence that ownership by a nonprofit corporation or association (or club) was irrelevant: a place of religious worship was exempt from taxation irrespective of its ownership. A hospital was exempt only as a “place devoted to charitable undertakings,” and when a hospital was converted to a nursing home accepting only paying patients the property was subject to taxation because not “devoted to charitable undertakings.” Ruston Hospital, Inc. v. Riser, La.App. 2 Cir. 1966, 191 So.2d 665. We suggest that even vacant, unused land given to an exempt hospital would have been taxable because not so “devoted.”

The 1974 Constitution’s language, by way of comparison, grants the exemption to property precisely on the basis of the benevolent character of its owner: a place of worship would not appear to be exempted if owned by an individual. The basis for exempting a hospital like Hotel Dieu today lies in its ownership by a “nonprofit corporation or association organized and operated exclusively for . . . charitable, health ... or educational purposes . . .and it may arguably be that the presence of “health . . . purposes” would grant the exemption to a nonprofit corporation whose sole function is to operate a nursing home. But, assuming that the operation of a nursing home for paying patients is not among “health . . . purposes,” it would be difficult to conclude that an admittedly exempt hospital which erected a nursing home on its hospital grounds would be taxable on the nursing home because that would necessitate holding that the nursing home is “unrelated” to the hospital’s hospital purposes. Consider also the hypothetical case of vacant, unused land given to an exempt hospital: would not that land become exempt because owned by an exempt corporation and not used for commercial purposes? The 1974 language does not deny the exemption if the property is not used for the exempt purpose (as did the 1921 language), but only if it is used for “commercial purposes” and, more precisely, for “commercial purposes unrelated to the exempt purposes .. . . ” (Emphasis added.)

The 1974 Constitutional Convention showed its understanding of “unrelated” purposes: a parking garage “downtown— five blocks away” from the hospital that owned it would constitute an unrelated use, therefore taxable, while a parking facility on the hospital grounds, intended to facilitate patients, staff and visitors, would not be “unrelated.” Some food-serving facility (what hospital save the smallest has none?) available to staff and visitors at a hospital was also recognized as a related purpose exempt from taxation.

In the matter before us, too, the exemption cannot be denied unless it is a purpose “unrelated” to the hospital’s exempt “health ... or educational purposes” for the hospital to provide, in its immediate vicinity, office space for the doctors on its medical and instructional staff and parking space for them and their patients as well as for hospital visitors (plus a pharmacy and a restaurant). Neither state nor city so argues in defending this action. Their arguments are based on cases like Ruston Hospital (also argued to the trial court), interpreting the 1921 rather than the 1974 Constitution. As we have shown, there are stark differences between the two constitutions.

Defendants also argue the general rule of strict construction of exemptions, “that exemptions from taxation are to be strictly construed . . . and that any plausible doubt is fatal” to the exemption, Mattingly v. Vial, 1939, 193 La. 1, 190 So. 313, 315. We find no “plausible doubt” in the construction we give to the 1974 Constitution, and we cannot find any plausible justification for a conclusion that the building in question is “owned, operated, leased or used for commercial purposes unrelated to the exempt purposes” of Hotel Dieu. The judgment of the trial court erred in its evident reliance upon the pre-1974 jurisprudence construing the 1921 Constitution.

The judgment is reversed; judgment in favor of plaintiffs decreeing the subject property exempt under La.Const. art. 7 § 21(B)(1).

      . E.g.: Mr. [now Justice] Dennis: “[I]t’s my appreciation of that; that that does not say anyone can make a profit; that simply says that a hospital — for example — if it operates a cigar stand, or lets someone . . . lets a pharmacist operate a pharmacy, or lets a doctor operate a pathology or an X-ray lab inside the hospital, if somebody comes along and says those are commercial purposes, then we aren’t going to throw the whole hospital on the tax rolls because those are related purposes.” (2023.)
      Mr. [now Justice] Dennis: “Now, if they take some property downtown and lease it out for a haberdashery or something, that’s clearly not related to an educational purpose and it would not be exempt. Now, I appreciate your concern. This is the same concern Mr. Lennox had. But, I ask you to look what you’re doing if you take this out — what you’re doing to hospitals. Hospitals have to run some things that people make money out of in their hospitals, such as: X-ray labs, pathology labs, pharmacies, and I said cigar stands, but I’ll amend that to say refreshment stands for Mrs. Warren’s benefit. Now, somebody could come along and say these are commercial purposes. 1 don’t think you ought to say that, but somebody might. If one of these purposes were to be classified as commercial, it would make the whole hospital be subject to taxes even though it is related to the operation of a hospital. So, that’s the reason for that last line in there. As long as the hospital is doing something that is related to running a hospital, I don’t think that it should lose its exemption even if somebody could classify it as commercial. I don’t think that that endangers what you’re trying to guard against and, that is, Tulane renting out a store downtown, because that is clearly unrelated to the purpose of Tulane, which is educational. (2025.)
      * * * * * *
      Mr. Lowe: “First of all, ... we did want to exempt the organizations that are enumerated in the first part of this amendment. But . . . we are concerned about those organizations that are not legitimate, but could go out and organize themselves under the nonexempt [sic; nonprofit?] statutes .... Now, to cover that, you additionally have to get an income tax exemption. If you can’t meet the requirements for that income tax exemption, . . . you can be organized under any statute you want. This amendment still would not give you an exemption from ad valorem taxes .... [T]he second concern was . . . tax-exempt organization . . . competing with free enterprise .... [T]he federal government . . . took care of that particular problem by saying that any unrelated business income — a hospital is organized for the purpose of carrying on medical treatment .... Now, if that hospital that is tax-exempt has a parking lot downtown — five blocks away— then they are in an unrelated business activity. That parking lot downtown has nothing to do with the activities, the exempt purpose for which that organization was organized and received its exempt status. So then, that unrelated business income is taxable; it’s also, according to this amendment, taxable for ad valorem tax purposes.” (2025.)

      . Because we view Seton Professional Building, Inc. so purely the alter ego of Hotel Dieu, we do not reach the question of whether exemption is also obligatory under Seton’s tax-exempt purposes “as a support facility” for Hotel Dieu (notwithstanding the charter’s simple specification “1. To own and operate a professional office building with close proximity to Hotel Dieu; 2. To rent space to members of the medical-dental profession, provide space for a pharmacy, snack bar and garage, and to furnish such other related services ordinarily provided in a professional office building.”).


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    Mrs. JoAnne J. Avilez, Wife of/and Glenn AVILEZ v. SOUTH JEFFERSON GENERAL HOSPITAL, et al.
    No. 12043.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1981.

      John D. Lambert, Jr., New Orleans, for plaintiffs-appellees.
    Richard J. McGinity, McGinity & McGinity, New Orleans, for defendants-appellants.
    Before REDMANN, SCHOTT and KLIE-BERT, JJ.
   KLIEBERT, Judge.

On May 26, 1978, JoAnne Avilez (hereinafter “Avilez”), plaintiff-appellee, struck her hand through a glass door at her home and was admitted to South Jefferson General Hospital (hereinafter “South Jefferson”), for surgery and skin graft to her hand. After the operation, Avilez was returned to her hospital room for the usual post-operative treatment. At approximately 6:00 o’clock A.M. the following morning, plaintiff awoke and went to the bathroom. While enroute to the bathroom, Avilez began to feel sick and lightheaded. She pulled the emergency light button for assistance but no one came. Plaintiff then lost consciousness and fell forward to the floor. Avilez sued South Jefferson General Hospital seeking damages for injuries to her mouth, neck, arms, back, hips and legs, as well as for mental pain and suffering and disfiguration. After trial on the merits, Avilez was awarded damages of $14,-623.08. South Jefferson appeals.

On appeal, South Jefferson argues three main specifications of error: 1) Plaintiff had not fulfilled her burden of proof by showing that the hospital was guilty of negligence which caused her injuries; 2) plaintiff was guilty of contributory negligence; 3) the damages awarded were excessive.

Dr. Edward Sudderth, Administrator of South Jefferson Hospital, was called to testify under cross-examination. He testified to South Jefferson being a small, 75 room hospital which is shaped like an “X”, with the nurses’ station located in the middle of the “X”. He stated that Avilez was in room 102, which is the second room down the hallway from the nurses’ station. Sud-derth explained the bathroom situation whereby one bathroom services two rooms. Further, the bathroom has an emergency system whereby a white light over the door to the room flashes simultaneously with a white and red light at the nurses’ station. Further, a beeping sound begins and continues until someone at the nurses’ station responds. However, the only way to turn these lights off is to go down the hallway and turn them off in the bathroom.

JoAnne Avilez testified as follows: After her surgery, she was placed in Room 102— Bed A and was told by the nurse that she was not to get up from bed too soon after surgery. At 3:00 P.M. on May 26, she called for help to go to the bathroom, but no one came. She called again at 5:00 P.M., but no one came; instead, her mother had to assist here. (In a prior deposition, plaintiff had stated that she made it to the bathroom unassisted at 5:00 P.M., but at trial, she explained the inconsistency by stating that her mother had reminded her, subsequent to the deposition, that her mother had assisted her to the bathroom at 5:00 P.M.)

A nurse came in at approximately 8:00 P.M., looking for a specimen and told plaintiff that someone would be there about 5:30 A.M. to get another specimen. She received a shot for pain at approximately 9:00 P.M., and then the nurse raised the railing on the left side of the bed but failed to do so on the right side.

The next morning no one arrived for the specimen. At approximately 6:00 A.M., Avilez got up and went to the bathroom. Avilez only had a throbbing headache when she got up, but as she approached the bathroom, she started feeling lightheaded and dizzy. As she opened the door she started feeling clammy and sweaty all about her whole body, and when she got to the bathroom, she rang the “call” light, grabbed onto the hand rail and sink, and eased herself down to the toilet. She then took a urine specimen and took care of her menstrual needs. At that time, things began to get grayish looking, and as she was holding onto the sink moaning for help, she heard someone asking “Are you all right? May I help you?” She then fainted and fell, face first.

When Avilez came to, she was unclothed (the surgical gown had fallen off) and she crawled back to her bed. However, prior to leaving the bathroom the door on the other side of the bathroom opened and a woman with dark hair and a long pink robe “did something and closed the door immediately.”

Avilez related that Annie Jacks, who was dressed in blue, was the first person she remembered seeing' after she returned to bed, and then two women in white came in. Jacks told her that the nurses were arguing over who would answer the call light and that there had been complaints all night about the nurses responding to calls. Avi-lez stated that the emergency light was on the entire time she was in the bathroom. She estimated that from the time she got in the bathroom, rang the light and took care of her personal needs, approximately three minutes had elapsed, and that from ringing the bell until she got back into bed was approximately four to five minutes.

Adele Valliant, the licensed practical nurse on duty at the time of the accident, testified that she was at the nurses’ station when Avilez signalled for assistance. Valli-ant twice pushed the intercom to Room 100 (sic) and asked what was wrong, but no one answered. Valliant then called to the nurses’ lounge for an aide, but received no answer, so she then got up and went to Room 100 herself. Before she went to look she told the registered nurse on duty to find an aide. Upon arriving at Room 100, she determined that both patients were sleeping. She then went back to see if she had the right room. Upon further investigation, she saw Avilez, naked, standing at the foot of the bed trying to get back into bed. As she assisted Avilez back into bed she noticed Annie Jacks, an aide, for the first time. She noticed that Avilez had broken her front teeth, but denied seeing any blood around her mouth. Valliant estimated that approximately a minute or a minute and one-half had elapsed between the first buzzer until the time she saw Mrs. Alivez standing in the room.

Mildred Raacke Kepler, the registered nurse and night supervisor at the time of the accident, testified that she and Valliant were at the nurses’ station and Annie Jacks, the aide, was in the nurses’ lounge at the time the emergency buzzer first sounded. Kepler related that Valliant had gone down the hall when the light came on and how she (Kepler) had called for the aide at the nurses’ lounge. Kepler stated that both Valliant and Jacks arrived before she did, but that Valliant had gone to investigate before Jacks had. Kepler estimated from the time she had first heard the buzzer until the time she arrived at room 102 approximately one and one-half to two minutes had elapsed.

Nell Jordon, plaintiff’s mother, testified that on the evening of May 26, she was present at 5:00 P.M. when Avilez had called for assistance to go to the bathroom but none came, and she had to assist Avilez herself.

Annie Jacks, the nurses’ aide, testified to having reacted immediately when she heard the emergency bell. She claimed to have arrived at the scene in less than one minute and that plaintiff was standing next to the wash basin with her gown on when she arrived. Jacks did not remember Valliant being there when she arrived.

Hospitals and their employees have a duty to respond to a patient in need of emergency care, especially when the patient is signalling for assistance from the bathroom. Furthermore, where, as here, hospital personnel do not want the patient to go to the bathroom unassisted, said personnel have a duty to ensure that the chances of the patient attempting to do so are minimized and therefore they have a duty to take necessary protective measures (e.g., putting up both sides of the hospital bed) while leaving the patient unattended.

A trial judge’s finding of fact is not to be disturbed on appeal in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La. 1973). Manifest error simply means “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330 (La. 1979).

After reviewing the record, we find no manifest error in the trial court’s finding that hospital employees had breached their duty to plaintiff and that said breach of duty was the proximate cause of plaintiff’s injuries.

While there were contradictions between the testimonies of the various witnesses, the contradictions were resolved by the trial court in plaintiff’s favor. In reviewing a judgment based on factual conclusions, credibility findings supported by the record should not be disturbed on appeal unless found to be clearly erroneous. DiVincenti v. Desforges, 372 So.2d 606 (La.App. 4th Cir. 1979); Moss v. Security National Insurance Co., 350 So.2d 247 (La.App. 3rd Cir. 1977) writ denied, 352 So.2d 239; Calais v. Petroleum Helicopters, Inc., 330 So.2d 408 (La.App. 3rd Cir. 1976).

We find no merit to this specification of error.

Appellant next contends that plaintiff was guilty of contributory negligence which bars her recovery because she wilfully left her bed without a nurse’s assistance in spite of instructions not to do so and she failed to return to her bed immediately upon feeling ill.

He who claims contributory negligence must prove by a preponderance of the evidence that the injured party failed to act as a reasonable and prudent man and that his negligence was a contributing cause of the accident. Watson v. Illinois Central Gulf Railroad, 355 So.2d 1366 (La.App. 1st Cir. 1978).

Avilez admitted not seeking assistance prior to leaving her bed the morning of May 27 because when she had sought assistance on two different occasions the day before, no one responded or arrived to assist her. In so doing, it cannot be said that she acted unreasonably. Further, while it is not unreasonable to assume that some people would return to bed and lie down upon feeling ill, it cannot be said that Avilez was unreasonable in sitting down in the bathroom and calling for help from that position instead of returning to bed.

Therefore, South Jefferson has failed to prove by a preponderance of the evidence that Avilez failed to act as a reasonable and prudent person under the circumstances. Accordingly, this assignment of error lacks merit.

Appellant next contends that the damages awarded to plaintiff were excessive.

Avilez testified she was just going to stay in the hospital one night due to her hand surgery, but she remained for five days because of her fall. After her fall, Avilez started having problems with dizziness, feeling faint, and vomiting. She related having a great deal of pain in the front of her mouth, stiffness in her back and neck, numbness on the entire right side of her body, complete numbness in her right arm and dull numbness in her hip radiated down to her knees. She related being unable to eat solid foods or drink hot or cold liquids for weeks after the accident due to her broken teeth, and of being very conscious of her missing teeth when she returned to work (prior to having a bridge fitted). Avi-lez related that despite treatment by several doctors and a chiropractor, she still experiences stiffness in her neck, trouble when turning to the right, shoulder and arm pain, and pressure in the back of her head. She still sees the chiropractor every three to four weeks.

Dr. Amilcar Correa, a neurosurgeon, first saw plaintiff on June 9, 1978. His initial diagnostic impression was that plaintiff had a cervical and lumbar sprain. He prescribed a combination of pain medication, muscle relaxant and antidepressants, as well as two hot showers daily to alleviate muscle spasms. Dr. Correa next saw plaintiff on September 19, 1978, and she had the same symptoms as the previous visit, so he arranged for physical therapy. He next saw Avilez on May 22, 1979, and she had essentially the same complaints plus headaches in the back portion of her head and limited range of neck motion due to pain. He hospitalized plaintiff and performed a myelogram, which was normal. Although he reported the same findings and had the same diagnosis as he initially found, Dr. Correa pointed out that the X-rays which were taken in the hospital were different from those taken initially in that the cervical spine showed some straightening from the natural curvature. He stated such a condition “is generally secondary to muscle spasms pulling on the spine and therefore losing the normal curvature of the spine.” Dr. Correa prescribed physical therapy for the muscle spasms. In addition, Dr. Correa stated Avilez had biofeedback treatment while in the hospital (which allows the patient to measure the intensity of relaxation she can achieve) and also had a psychotic episode while in the hospital. While Dr. Correa opined that he would expect a greater trauma than Avilez's hospital fall to cause her the continuing muscle spasms, he stated that since there were no other intervening causes, then the fall of May, 1978 was, in his opinion, the cause of her neck and back condition.

Dr. William Chapel, Jr., a chiropractor, first saw plaintiff on June 19, 1979. His initial examination revealed decreased cervical range of motion in all planes (flexion, extension, right and left rotation, and left and right lateral bending), a great deal of muscle contraction in the neck area, and a posture which was tilted to the right. X-rays revealed a straightening of the cervical spine and the C-l to C-6 vertebra being tilted towards the right. His diagnosis on initial examination was chronic sublexation complex of the cervical spine. He recommend 120 days of extensive chiropractic treatment, which Avilez completed. Dr. Chapel saw plaintiff three times a week from June, 1979 through November, 1979, and in December, 1979, started seeing her once a week. He now sees Avilez on a “needs” basis. In essence, Dr. Chapel had found an irritation of the nerves (a “pinched nerve”) which caused the muscle spasms. He felt that plaintiff’s injury would definitely cause the symptoms that plaintiff was suffering and that her trauma was more likely the cause of her straightening spine than her sedentary job (plaintiff is a legal secretary).

Dr. L. Thomas Cashio, an orthopaedic surgeon, examined Avilez on Defendant’s request on March 4, 1980, almost two years after her fall. He found full range of motion of the neck and back, no muscle spasm of the neck or back, but some subjective tenderness over the lower vertebra. He found Avilez’s X-rays to be within normal limits and found no objective findings of either neck or back or nerve root irritation. In essence, he found no objective findings to substantiate Avilez’s present subjective complaints.

Dr. Philip T. Griffin, a specialist in clinical psychology, administered a personality inventory test to Avilez on request of Dr. Correa in June, 1979. After the test, it was Dr. Griffin’s impression that Avilez had some paranoid personality tendencies. Dr. Griffin refused to state that Avilez was paranoid, but stated instead that she has paranoid tendencies. He admitted plaintiff could not manufacture her symptoms.

Dr. Roger Anastasio, a psychiatrist, saw plaintiff on June 14, 1979. Since he only interviewed plaintiff once, he could not give her a definite diagnosis. However, he felt plaintiff had significant psychological difficulties which could be schizophrenic in character. Dr. Anastasio felt the anti-depressant drug, which plaintiff was taking could have made the psychotic symptoms that plaintiff was exhibiting while in the hospital, and that her condition was probably more neurotic than schizophrenic. Dr. Anastasio could not form an opinion as to whether Avilez’s physical condition was caused by her mental condition or if it was magnified by it.

Glenn Avilez, JoAnne’s husband, testified to his wife being in good spirits and in good physical condition the night before the fall. He related her mental health seemed to be in good condition prior to the fall and she had never made any complaints of neck or back pain prior to the fall.

The deposition of Jimmie J. Gaubert, D.D.S., was admitted into evidence in lieu of his testimony at trial. Dr. Gaubert first saw plaintiff on June 5, 1978. He noted three broken teeth (two front teeth and an eyetooth) and treated Avilez for pain. He extracted the left front tooth after a root canal was unsuccessful and he performed a root canal on the right front tooth on June 26, 1978. On July 10, 1978, he gave plaintiff four temporary caps in preparation for permanent caps. The permanent caps were fitted on July 25, 1978 and plaintiff was discharged.

The trial court judgment awarded plaintiff $14,623.08. In its reasons for judgment, the court itemized this amount as $8,000.00 in general damages and $6,623.08 in special damages.

Before a Court of Appeal can disturb an award made by a trial court the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976).

Given the foregoing, we cannot say that the trier of fact abused its discretion in awarding damages. Plaintiff has proven, by a preponderance of the evidence, that it was more probable than not her injuries were the direct and proximate result of her fall at the hospital.

Accordingly, this assignment of error lacks merit.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of appeal to be paid by appellant.

AFFIRMED.


author: REDMANN, Judge.

text:
    John R. TUSSON v. Patricia PRICE, wife of John R. Tusson.
    No. 12337.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 1981.

      Beobay & Gegenheimer, Jon A. Gegen-heimer, Gretna, for plaintiff-appellant.
    Lobrano, Ballay & Braud, Robert L. Lo-brano, Belle Chasse, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

“The better standard of review in custody matters gives trial court decisions great weight, to be overturned only when there is a clear abuse of discretion,” Cleeton v. Cleeton, La. 1980, 383 So.2d 1231, 1235, and the sole criterion for determining custody (and, we add, visitation) is the best interest of the child, Bordelon v. Bordelon, La.1980, 390 So.2d 1325.

Our review of this record satisfies us that the trial judge acted exclusively for the best interest of the children and that it was within his discretion to conclude the children would be better off if not brought to the father’s house. That home is large (7,000 sq. ft.) and on 50 acres of ground. Its problem is that the father, a highly educated and well motivated person, in his desire to help his fellow man has converted the home into a “Center for Creativity” at which he welcomes as guests for indefinite stays any persons he deems suitable. There were about seven men living there as of the trial of the rule, but the guests change in identity and number.

We cannot say that the trial judge’s conclusion is “clearly wrong,” Arceneaux v. Domingue, La. 1978, 365 So.2d 1330, 1333, and we must therefore affirm his judgment.

Affirmed.


author: KLEES, Judge.

text:
    Frank AHERN v. Gloria Agnes WEICKS, Widow of Andrew J. Leslie, Individually and as the Executrix of the Succession of Andrew J. Leslie, Harry Leslie, Freeman Brown and Lionel Pollard.
    No. 12160.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 4, 1981.

      J. Joseph Blotner, Gretna, for defendants-appellees.
    Frank S. Bruno, Bruno, Bruno, & Blouin, New Orleans, for plaintiff-appellant.
    Before REDMANN, SCHOTT, and KLEES, JJ.
   KLEES, Judge.

Appellant-Plaintiff Frank Ahern filed suit for damages seeking recovery from Andrew J. Leslie, his wife, son and two of Leslie’s employees, Lionel Pollard and Freeman Brown, for assault, false imprisonment and mental pain.

After a trial on the merits, the trial judge without written reasons awarded plaintiff $1,850.00 damages from which he has appealed. Appellant contends that the trial court erred in dismissing defendants Harry Leslie, Gloria Weicks Leslie, in their individual capacity, and Lionel Pollard and Freeman Brown from the suit and seeks an increase in damages.

We find no error in the Trial Court’s findings and affirm.

The evidence in this case indicates that defendant Andrew J. Leslie was the owner of the Leslie’s Shell Service Station in New Orleans. Plaintiff Frank Ahern was an old family friend who worked as a night manager at the station on the three to ten p. m. shift. Additionally, Ahern and Leslie were living in an apartment belonging to Leslie.

On April 16, 1977, Andrew J. Leslie was hospitalized for a heart condition. During a visit to him on that date and on previous visits Mrs. Leslie related that money was missing from the three to ten p. m. shift. Andrew J. Leslie obtained a pass from the hospital and accompanied by his wife proceeded to the apartment. Upon their arrival they entered the apartment which was unlocked and unoccupied. Andrew J. Leslie then directed his wife to look for some keys and during the search discovered $1,600.00 worth of traveler’s checks belonging to plaintiff Ahern. She turned them over to her husband. Upon Ahern’s return to the apartment from swimming he was confronted by Andrew J. Leslie who insisted that the money belonged to his business and the men began arguing. During the course of the argument, Lionel Pollard, an employee of Leslie’s and a defendant in the lawsuit appeared at the apartment. As he arrived Mrs. Leslie departed.

Shortly thereafter, Harry Leslie, Andrew J. Leslie’s son and Freeman Brown, another employee of Leslie’s, both of whom were also named as defendants appeared at the apartment.

At this time Ahern left the apartment and went to an adjacent apartment and called the police and then returned. The argument about the travelers checks and missing money continued for approximately one hour between Andrew J. Leslie and Ahern and consisted of various threats. Testimony was also elicited with respect to guns belonging to the two men displayed on a table, but not used in a threatening manner. All this culminated when Andrew J. Leslie took a heavy glass, or can of soup and threw it at Ahern striking him in the head and causing him to bleed. Ahern at this point, stopped resisting and arguing and endorsed $1,000.00 worth of the traveler’s checks to Andrew J. Leslie. He resisted signing any more checks and Andrew J. Leslie stated he had signed enough. Ahern then took a shower, dressed and left the apartment. He then proceeded to the police and lodged a complaint. Defendants were arrested and the traveler checks were recovered.

All defendants except Andrew J. Leslie who died shortly after his incident denied arguing with Ahern or participating in any assault on him.

In the present case there are not facts other than those propounded by the plaintiff which indicate that any conspiracy existed or that the other defendants tacitly assisted or encouraged Andrew J. Leslie to commit an assault and battery on the plaintiff. The facts, as believed by the trial court and supported by the evidence, merely indicate that they were present when Andrew Leslie and the plaintiff-appellant were having a heated oral argument and Andrew Leslie, apparently losing his temper, committed an assault and battery on the plaintiff-appellant.

As stated earlier, the resolution of the question whether the other defendants caused, assisted or encouraged Andrew J. Leslie, involves a credibility determination of their involvement. The trial judge obviously believed the testimony of the defendants over that of the plaintiff-appellant and since the record supports the trial judges determination there exists no manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1978).

The plaintiff-appellant also contends that the damages awarded were inadequate. Coco v. Winston Industries, 341 So.2d 332 (La.1976) indicated that the approach to take when considering whether an award was inadequate or excessive is to look to the particular facts as applied to the particular plaintiff rather than trying to match injuries and prior awards.

This court can see no reason to believe that an award of $1,850.00 is inadequate. When the episode first began Ahern left the apartment to call the police, but then voluntarily returned and continued to argue with Andrew J. Leslie with the other men present. It would seem more likely than not that someone in fear of his life or safety would have avoided the defendants until the police arrived.

During the trial Ahern continuously stated that he was in deep fear of a gun which was pointed at him, but when making a statement to the police after the incident stated that the gun was not a factor and was not pointed at him. At the conclusion of the altercation, after being struck by an object, Ahern still took time to shower, shave, and change into a suit. Finally, no medical evidence was presented at trial to show the extent of Ahern’s injuries and the court must conclude that they were superficial and minor.

For the foregoing reasons, the judgment in favor of plaintiff Frank Ahern and against the defendants, Gloria Agnes Weicks Leslie, as widow in community, and Harry Leslie as an heir of the Succession of Andrew J. Leslie jointly, severally and in solido in the full sum of $1,850.00 is affirmed. The plaintiff-appellant is to pay the costs of this appeal.

AFFIRMED.


text:
    Ben OWEN, Frances Owen, and Mary O. Smith v. Jack MacKAY.
    No. 52756.
    Supreme Court of Mississippi.
    Aug. 12, 1981.
    Rehearing Denied Oct. 7, 1981.
    Jacob C. Pongetti, Ben Owen, Columbus, for appellants.
    Jeffrey C. Smith, Thomas Y. Page, Shields Sims, Sims & Sims, Columbus, for appellee.
   Appeal from Chancery Court, Lowndes County; Edward C. Prisock, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


author: SMITH, Presiding Justice,

text:
    Craton POPE v. Cindy McGEE, Administratrix of the Estate of David W. Sallee, Deceased.
    No. 52787.
    Supreme Court of Mississippi.
    Sept. 9, 1981.
    Rehearing Denied Sept. 30, 1981.
    William W. Ferguson, Raymond, for appellant.
    Robert T. Gordon, Jr., Keith R. Raulston, Heidelberg, Woodliff & Franks, Jackson, for appellee.
    Before SMITH, BOWLING and HAWKINS, JJ.
   SMITH, Presiding Justice,

for the Court:

This is an appeal from a judgment of the Circuit Court of the Second Judicial District of Hinds County entered in a case brought by Craton Pope against Cindy McGee, Ad-ministratrix of the Estate of David W. Sal-lee, deceased, for damages for the alleged wrongful deaths of his sons, Jackie Ray Pope, Clayton Pope and Donald Ray Pope, wherein the trial court peremptorily directed the jury to find for the defendant. This action of the trial court is assigned as error on appeal. Appellee assigns as error on cross appeal the admission of certain evidence.

Clayton Pope, Jackie Ray Pope and Donald Ray Pope were killed instantly as a result of an automobile collision which occurred between the automobile in which they were riding and another automobile driven by David W. Sallee, who also was killed. Sallee, and all of the other passengers in both automobiles died without speaking.

There was no surviving eyewitness to the collision, which was investigated by an officer of the Mississippi Highway Safety Patrol. The Sallee automobile came to rest heading north in the northbound lane, at a slight angle toward the right-hand ditch. The Pope automobile came to rest in the right-hand ditch, off of and to the right of the highway, also headed north. Both cars were almost entirely demolished by the impact. There was testimony of a witness that the Sallee automobile had passed him a few miles north of the accident scene, traveling south at a high rate of speed. The debris was along the right side, and immediately to the right of, the northbound lane of the highway.

It is the theory of plaintiff that the Pope automobile was northbound toward Utica, and, based upon the testimony of the witness who said the Sallee automobile had overtaken and passed him going south, toward the collision site (toward Crystal Springs), that a reasonable inference may be drawn that it had continued in a southerly direction. Appellant contends that this evidence is sufficient to support a reasonable inference, which the jury may or may not draw, that the Pope car, traveling north, was in its correct lane of traffic, the lane of traffic in which the position of the cars and location of the debris appear to indicate that the collision occurred; and that the Sallee automobile, on the contrary was traveling south and had negligently entered the northbound lane, thus bringing about the head-on collision with the force of the combined speed of the two vehicles.

At the conclusion of all of the evidence for the plaintiff, defendant moved for a directed verdict and his motion was sustained. Thereupon a judgment was entered for defendant, dismissing plaintiff’s suit. Appellant challenges the granting by the trial court of appellee’s motion for a directed verdict, citing Dehmer v. Hederman, 252 Miss. 839, 173 So.2d 924 (1965), in which it was held:

It is uniformly held that in determining whether a peremptory instruction should be given the court must look solely to the testimony on behalf of the party against whom the peremptory instruction is requested, and must take that testimony as true along with all reasonable inferences which could be drawn therefrom. And even when the evidence is such that a judgment for the adverse party would have to be set aside as being contrary to the overwhelming weight of the evidence, it does not follow that a directed verdict should be granted.... [252 Miss. at 844, 173 So.2d at 925].

The question presented to this Court for decision as to the propriety of the trial court’s action in directing a verdict is a difficult one. We have carefully examined the record and, although the issue is extremely close, have concluded that the evidence, although largely circumstantial, is such that an inference might reasonably be drawn from it (but is not necessarily compelled by it) that the Sallee automobile negligently entered the northbound lane of the highway, causing the collision, and that the evidence, tested under the rule set out in Dehmer v. Hederman, supra, was sufficient for submission to the jury. See also Denman v. Denman, 242 Miss. 59, 134 So.2d 457 (1961):

Negligence may be established by circumstantial evidence in the absence of testimony by eye-witnesses provided the circumstances are such as to take the case out of the realm of conjecture and place it in the field of legitimate inference, and in such case the causal connection between the agency and the injury need not be shown by direct evidence. . . . [242 Miss. at 66, 134 So.2d at 459].

Found in the Sallee car were two six packs of warm beer and some unidentified white powder. There is no evidence whatever that Sallee had been drinking or was under the influence of dope. In fact, there was no evidence that the white powder was any kind of “dope.” The patrolman, arriving shortly after the collision, investigating the question, was unable to detect any smell of alcohol on Sallee’s breath. A blood test also showed no alcohol in his blood. The character of the white powder was not established and it was not identified except as a “white powder.” The implication, not supported by any evidence, is that it was some form of “dope.” Testimony regarding the presence of the six packs and the white powder should be excluded. There is no evidence that Sallee was intoxicated or that he had been drinking, the only evidence in the record was to the contrary. The white powder, whatever it may have been, was not identified and there is nothing to show that Sallee was under the influence of dope. Allowing evidence of the presence of these things in the Sallee automobile would be highly prejudicial and would shed no light on the proximate cause of the collision. This evidence is not to be admitted on retrial.

We cannot predict, of course, how the evidence will develop on retrial or what, if any, additional relevant evidence will be introduced by the defendant-appellee.

The trial court was in error in directing a verdict for defendant and the judgment is reversed, the case remanded for a new trial and submission of the evidence to the jury.

REVERSED AND REMANDED ON DIRECT APPEAL. CROSS APPEAL SUSTAINED AS TO EXCLUSION OF CERTAIN EVIDENCE.

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


author: BROOM, Justice,

text:
    Tommy B. TUCKER v. STATE of Mississippi.
    No. 52829.
    Supreme Court of Mississippi.
    Sept. 16, 1981.

      Terry Burnet, St. Louis, Mo., for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court.

Possession of cocaine is the offense for which the defendant Tucker was convicted in the Circuit Court of Oktibbeha County and sentenced to three years imprisonment plus a $3,000 fine. On his appeal here he argues that the state erroneously introduced (1) evidence of other crimes, (2) hearsay testimony as to what an informant told one of the investigative officers, and (3) evidence arising from search of the defendant’s car thereby violating his Fourth Amendment rights under the United States Constitution. We affirm.

Officer McVey of the Starkville Police Department received a tip from a confidential informant concerning drug trafficking in the area. McVey had previously used the informer and found him to be reliable. Regarding the present case, the informer told Narcotics Officer McVey that one Tucker and Mitchell Prater, a local resident, were driving a beige or cream-colored 98 Oldsmobile bearing Missouri license plates and were selling marijuana from the car. The informer told him that the men had been at Pat’s Pool Hall in Starkville around 4 p. m. Searching for the car, McVey found one matching the description and recognized Prater inside. McVey followed the car a while and called for help from the sheriff’s office after the car crossed the city limits into the county.

In stopping the car which they had had under surveillance, Sheriff Bryan and a constable assisted McVey. As the sheriff approached the car, he saw Prater, the passenger in the back seat, move about and place his right hand inside his coat. Fearing that Prater might be drawing a weapon, the sheriff ordered him outside of the car; McVey ordered the two men in the front seat to put up their hands. Although no weapon was found on either of the three subjects arrested, Tommy B. Tucker, Mitchell Prater and Ira Joe Henry, a derringer was found on the ground outside the passenger side of the car. It was raining and sleeting at the time of the arrest, but the derringer was dry when found. While frisking the men, the sheriff saw two hand-rolled marijuana cigarettes in plain view on the floor of the car. At that point the three men were arrested for possession of marijuana and taken to the police station.

Narcotics Officer McVey got a search warrant for the car and for a motel room where two of the men were staying. Defendant Tucker was searched at the police station (his clothing was removed), and in the bib pocket of his overalls a white powdered substance was found which turned out to be cocaine. Inside Tucker’s wallet a small quantity of cocaine was found. At trial, Tucker took the stand and denied possessing any cocaine.

The first assignment of error deals with the proposition that the state was allowed to erroneously introduce into evidence testimony concerning the defendant’s participation in other unrelated criminal activities. He specifically points out several occasions during the trial concerning the testimony to which he now takes exception. His argument in this regard lacks persuasion because in each of the instances in question either no objection was made to the testimony, or an objection was sustained, or the testimony was an exception to the general rule that other offenses are inadmissible. Part of the evidence which the defendant argues was erroneously admitted was elicited by defense counsel on cross-examination of state witness McVey. The following is excerpted from the record.

Q. All right, then do you remember— you say that there was an envelope made that had “Tommy Tucker’s Belongings” written on it on the list. Do you remember anything about cash; about two hundred and something dollars?
A. There was a — there was an amount of money that was taken off of Mr. Tucker, to which I also sent to the Crime Lab for analysis for fingerprints and this type, to show exchange of money between the occupants of the car.
Q. Do you know where that money is now?
A. Yes, sir.
Q. Does the Starkville Police or the Bureau of Narcotics have it?
A. No, sir.
MR. MOORE:
That’s all the questions I have.
(Emphasis added).

Later, on re-direct examination of McVey, he was allowed to state, “I was trying to show the exchange of money between the occupants of the vehicle.” We think that inasmuch as the defense initially brought out “exchange of money between the occupants of the car” the error, if any, is not reversible. Thus, the record fails to warrant reversal in this case although in the companion case, Tucker v. State, supra, a new trial is ordered because the error discussed in it is upon a different posture of the record. There reversal is ordered upon objectionable evidence brought out entirely by the state to which objection was properly made.

Next argument is the proposition that the defendant was denied the right of confrontation by the allowance into evidence of testimony consisting of what the confidential informer told Officer McVey concerning Tucker. This argument is unavailing because no objection was made to McVey’s testimony. Baker v. State, 327 So.2d 288 (Miss.1976).

Last argument asserted is that there was no probable cause for the search and seizure of the defendant’s car. Our review of the evidence presented indicates that the defendant’s vehicle was stopped as a result of a tip from an informer who had been found by past dealings to be reliable. The informer’s tip was specific and detailed, and therefore upon the record as made the stopping of the vehicle as an investigatory stop was entirely proper. After stopping the vehicle, the officers had a right to make a limited protective search for weapons during which the sheriff observed the two marijuana cigarettes in plain view. It was then that the men were arrested, and subsequently upon a search warrant the car was searched. In this state of the record, we cannot logically rule that the search and seizure of the automobile was in any sense improper. Upon careful scrutiny of the record, and excellent briefs filed by the defendant and the state, affirmance is required.

AFFIRMED.

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

      . Tucker v. State, 403 So.2d 1274 (Miss.1981) is a case involving the same facts, but the charge is possession of marijuana.


author: SUGG, Justice,

text:
    Tommy B. TUCKER v. STATE of Mississippi.
    No. 52827.
    Supreme Court of Mississippi.
    Sept. 16, 1981.

      Terry Burnet, St. Louis, Mo., 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 BROOM, JJ.
   SUGG, Justice,

for the Court:

Appellant was convicted in the Circuit Court of Oktibbeha County for possession of more than one ounce but less than one kilogram of marihuana, was sentenced to three years imprisonment, and fined $1,000.

In his first assignment of error, appellant contends he was denied his right to a fair trial because the prosecution injected evidence of another crime for which he was not on trial. In presenting its case in chief, the following evidence was elicited from the witness Charlie McVey:

Q. Charlie, I’d like to direct your attention back specifically to about six o’clock that evening, if you’d tell the court and jury what happened at that time?
A. Yes, sir, I received information from one of my informants who’s credible and reliable and has given me information in the past that has led to convictions that at approximately four p. m. that same afternoon a subject by the name of Tucker and Mitchell Prater were in the pool hall with a brown paper sack containing a quantity of marijuana, and that they were riding in a beige or cream colored Oldsmobile 98 with Missouri tag on it. He advised me that they were dealing out of that vehicle and that they were also staying at the Best Western Motel, and—
Q. When you say “dealing” what do you mean Charlie?
A. Selling.
MR. MOORE:
Your honor, I object to that, and move for a mistrial; the defendant’s not charged with selling marijuana.
THE COURT:
Overruled; the motion for a mistrial is overruled.

Appellant was on trial for possession of marihuana and was not charged with selling marihuana. The general rule is that testimony in a criminal trial should be confined to the charge for which an accused is on trial and the prosecution should not be allowed to aid the proof against the accused by showing he committed other offenses. In Sumrall v. State, 257 So.2d 853 (Miss.1972) this Court stated:

It is contended by the appellant that the admission of this evidence was highly prejudicial and served no other useful purpose than to prejudice the jury against the defendant. It is a well-settled general rule that the issue on a criminal trial should be single and that the testimony should be confined to that issue and on the trial for one offense the prosecution should not be allowed to aid the proof against the defendant by showing he committed other offenses, even though of a like nature. Cummings v. State, 219 So.2d 673 (Miss.1969); Ladnier v. State, 254 Miss. 469, 182 So.2d 389 (1966); Brown v. State, 224 Miss. 498, 80 So.2d 761 (1955); Pegram v. State, 223 Miss. 294, 78 So.2d 153 (1955); Floyd v. State, 166 Miss. 15, 148 So. 226 (1933).
There are well recognized exceptions to the foregoing rule which have been given due consideration, but it is our opinion that the evidence relative to the possession of marijuana by the defendant on the day after the alleged sale does not come within any of the exceptions. The alleged sale had been completed and the only connection the appellant was shown to have had with the sale was that he aided, abetted, and assisted in the sale. Under these circumstances, the fact that he had marijuana in his possession at another time served no purpose other than to prejudice the jury. The introduction of this evidence requires a reversal of this case. (257 So.2d at 854)

In response to the argument of appellant, the state relies on Gray v. State, 351 So.2d 1342 (Miss.1977) and Riley v. State, 254 Miss. 86, 180 So.2d 321 (1965). In Gray we held:

It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See, Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). (351 So.2d at 1345)

Proof that appellant was selling marihuana from his automobile before marihuana was found in his motel room does not fall within any of the recognized exceptions to the general rule and requires a reversal of this case.

Appellant also assigns several other errors and because we are remanding this case for a new trial, it is necessary to rule on the admissibility of the evidence obtained as the result of the search warrant in this case.

Acting under the authority of a search warrant issued by Justice Court Judge James A. Mills, county and city officers seized a quantity of marihuana in Room 162 of the Best Western Motel located in Stark-ville. Appellant’s motion to suppress was overruled. On appeal, appellant contends the evidence should have been suppressed on two grounds. First, appellant maintains the underlying facts stated in the affidavit for the search warrant are insufficient to cause a reasonably prudent man to believe that drugs were located on the premises to be searched; second, the evidence presented to the justice court judge for the issuance of the search warrant was seized unlawfully in violation of defendant’s Fourth Amendment rights.

Charlie McVey, a police officer for the city of Starkville, made the affidavit for the search warrant and the underlying facts in the affidavit are as follows:

On Feb. 9, 1980 Charley McVey received information from a reliable informer who has given Charley information in the past that has lead to convictions. His information was that a black male named Tucker who was driving a Olds car with Missouri tags that this Tucker sub. was dealing drugs out of this car with the help of a Starkville man by the name of Mitchell Prater.
This car was stopped on Hwy 82 east 2/9/80 several hand rolled cig. were found in the car and a 38 cal. derrenger was found outside the right front door and the window was down. Three subjects were placed under arrest. The Passenger had two small bags of green veg. matter and the driver has several small foil pouches of white sub. that a field test came out positive for cocaine.
The two sub. that had contraband on them are staying in room # 162 Best Western Motel Hwy 82 Starkville, Miss.
The informer also told Charley that Tucker had several pounds of marijuana.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1965), the United States Supreme Court held that some of the underlying facts and circumstances from which an officer concludes that probable cause exists for issuance of a search warrant must be stated in the affidavit, so that these inferences may be drawn by “a neutral and detached magistrate.”

In a later case, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) the Court recognized that affidavits for search warrants are normally drafted by officers involved in a criminal investigation and statement of underlying facts contained in search warrants should be viewed by magistrates and courts in a common sense and realistic fashion. The Court stated:

These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. (380 U.S. at 108, 85 S.Ct. at 746, 13 L.Ed.2d at 689)

We are of the opinion that the statement of underlying facts in the affidavit by McVey pass muster. McVey stated in his affidavit that a reliable confidential informer told him that Tucker had several pounds of marihuana, was driving an Oldsmobile automobile with Missouri tags and was dealing drugs out of the car with the help of a local man named in the affidavit, that the car was stopped and three occupants were placed under arrest after finding several hand rolled cigarettes in the car and a .38 caliber Derringer outside the car. As a result of the search, cocaine was recovered from the driver and two small bags of green vegetable matter from the passenger and the two that had contraband on them were staying in Room 162 at the Best Western Motel in Starkville.

The information contained in the search warrant was sufficient to justify the inference by the justice court judge that probable cause existed for issuance of the search warrant.

When the automobile occupied by Tucker, Henry and Prater was stopped, the automobile was not searched but was taken to the Starkville Police Department and impounded until a search warrant for the automobile could be obtained. McVey and Dolph Bryan, Sheriff of Oktibbeha County, appeared before Justice Court Judge Mills and signed an affidavit for a search warrant for the automobile, and McVey signed an affidavit for a search warrant for the motel room at that time. The justice court judge had before him at the same time the two affidavits. The underlying facts in the affidavit for the search warrant for the automobile follow:

On Feb. 9, 1980, Charlie McVey received information from a credible and reliable informant who has given information in the past that has led to conviction more than one time, that a Beige or Cream colored 98 Oldsmobile bearing a Missouri tag driven by a B/m by the last name of Tucker, had in his possession, a quantity of marijuana to wit in excess of an ounce. The informant further stated that a B/m by the name of Mitchell Prater was helping Tucker distribute the marijuana. The informant stated that Tucker was staying at the Best Western Motel at approximately (time illegible) hrs. Charlie McVey observed the 98 Oldsmobile bearing the Missouri plates on Highway 82 East in the Oktibbeha County. With the assistance of okt. 1, okt. 6 and Sgt. Agnelty, the vehicle was stopped. Sheriff Bryan upon walking up to the passenger window immediately noticed two handrolled cigarettes laying on the passenger floor, a 38 Deringer was found by Sheriff Bryan on the ground right beside the vehicle. All three occupants were transported to the Okt. County jail, and searched. Five small tinfoil containers were found on the driver in his coveralls by Robert Howell. Deputy Jesse Oden found two Five dollar bags of marijuana on the front passenger Ira Herly. The above vehicle was then taken to the Starkville P.D. and impounded until a warrant could be obtained.

We are of the opinion that the justice court judge could consider the underlying facts in both affidavits in determining whether probable cause existed for the issuance of the search warrants. When both affidavits are considered together there is no question but that the justice court judge reached the proper conclusion and determined that probable cause existed for issuance of the search warrants. However, we are of the opinion and hold that the underlying facts stated in the affidavit for the search warrant for the motel room, standing alone, were sufficient to justify issuance of the search warrant for the motel room without reliance on the additional facts contained in the affidavit for search of the automobile.

In support of the second ground upon which appellant based his motion to suppress, he argues that some of the evidence presented to the justice court judge for the issuance of the search warrant, was seized from him unlawfully in violation of his Fourth Amendment rights. Appellant’s automobile was stopped by officers acting on information received from a reliable informer which led to the seizure of cocaine and a key to Room 162 of the Best Western Motel from appellant’s person. In Tucker v. State, 403 So.2d 1271 (Miss.), decided this date, we affirmed the conviction of Tucker for possession of the cocaine taken from him holding there was probable cause to stop appellant’s vehicle and search him. Details of the circumstances surrounding the stopping of the automobile, arrest, and search of appellant are stated in No. 52,829 and will not be repeated here. Suffice it to say, the cocaine and motel key were lawfully seized by the officers so the holding of the United States Supreme Court in Wong v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962) is not applicable to the facts of this case.

Appellant also argues that he was denied his right to confront and cross-examine a witness against him, as guaranteed by the Sixth Amendment of the United States Constitution and Section 26 of the Mississippi Constitution of 1890, by the introduction of hearsay by McVey when he related the statements made by the informer to him. This argument would be well taken under our holding in McVey v. State, 355 So.2d 1389 (Miss.1978) and Sisk v. State, 290 So.2d 608 (Miss.1964) except for the fact appellant did not object to the hearsay testimony at his trial on the ground that the statements were hearsay. Absent such objection, this assignment of error is without merit.

Appellant also contends that there was insufficient evidence to show that he possessed the marihuana found at the Best Western Motel. We are of the opinion that the evidence made a jury question on constructive possession of the marihuana by appellant.

Appellant also argues that he was denied the right to a fair trial because the state elicited testimony from Ira Henry that he had been convicted for the same offense for which appellant was on trial. Appellant introduced Ira Henry as his witness and Henry claimed that the marihuana found in the motel room belonged to him and that appellant did not know the marihuana was in the room. Under this set of circumstances, it was not error for the state to show that Henry had been convicted of possession of marihuana on Friday of the preceding week and that Henry did not claim the marihuana at his trial.

We reverse and remand for a new trial because the state introduced evidence of another crime for which appellant was not on trial.

REVERSED AND REMANDED.

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

      . When the motion to suppress in this case came on for hearing, the motions to suppress in causes numbered 9,999, 10,001 and 10,002 were consolidated for hearing by agreement. Ira Henry was charged with possession of marihuana in No. 9,999, and Tucker was charged with possession of marihuana in No. 10,001 and possession of cocaine in No. 10,002.

      . The reliability of the informer is not questioned by appellant, and is admitted in his brief at page 22.


text:
    PONTOTOC WIRE PRODUCTS CO. v. Billy Ray FERGUSON.
    No. 52830.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Robert S. Addison, Daniel, Coker, Horton & Bell, Jackson, for appellant.
    John D. Sibley, Okolona, for appellee.
   Appeal from Circuit Court, Pontotoc County; Fred Wicker, Judge.

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

AFFIRMED.


text:
    Phillip B. PERKINS v. STATE of Mississippi.
    No. 53028.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Travis T. Vance, Jr., Eugene A. Perrier, Vance & Perrier, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

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

AFFIRMED.


text:
    Glenda Powell ARNEY v. Claude ARNEY.
    No. 52892.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Jackson M. Brown, Starkville, for appellant.
    Charles T. Yoste, Starkville, for appellee.
   Appeal from Chancery Court, Oktibbeha County; W. W. Brand, Jr., Chancellor.

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

AFFIRMED.


text:
    Alfred MERCIER, Jr. and Jerri L. Holmes v. STATE of Mississippi.
    No. 52902.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Clyde Ratcliff, McComb, for appellants.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Amite County; Edwin E. Benoist, Jr., Judge.

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

REVERSED AND RENDERED.

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


text:
    Jerry GOSS v. SINGING RIVER ELECTRIC POWER ASSOCIATION.
    No. 52941.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    William Roberts Wilson, Jr., Pascagoula, for appellant.
    Vincent J. Castigliola, Jr., Bryan, Nelson, Allen, Schroeder & Backstrom, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

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

AFFIRMED.


text:
    David Wayne ASHBY v. Roslyn Renee Self Ashby GREGOV.
    No. 52926.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Frank R. McCreary, III, Gulfport, for appellant.
    Joseph R. Meadows, Graves, Riley, Meadows & Walker, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Ronald Felton GREGG v. STATE of Mississippi.
    No. 52932.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Louis Fondren, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

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

AFFIRMED.

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

LEE, J., took no part.


text:
    STATE of Mississippi v. Jimmy CARPENTER.
    No. 52796.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    R. Kenneth Coleman, Dist. Atty., Okolo-na, for appellant.
    Jay Fred Friedman, Memphis, Tenn., for appellee.
   Appeal from Circuit Court, Benton County; William R. Lamb, Judge.

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

AFFIRMED.


text:
    Ronald D. BRIGGS v. STATE of Mississippi.
    No. 52579.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    William P. Myers, Austin & Branan, Her-nando, for appellant.
    Bill Allain, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, DeSoto County; Andrew C. Baker, Judge.

Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    Ira Joe HENRY v. STATE of Mississippi.
    No. 52811.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    John Paul Moore, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of Oktibbeha County, Mississippi, Ira Joe Henry was tried and convicted of the crime of possession of marijuana in an amount greater than one ounce and less than one kilogram. Henry was sentenced to three years in the Mississippi Department of Corrections and fined $1,000.00.

Henry’s principal assignment of error in his appeal concerns the admission of evidence arising from the stop and search of the automobile in which he was a passenger. It is the opinion of this Court that the issue is controlled by Tucker v. State, No. 52,827, 403 So.2d 1271 (Miss.Sup.Ct. September 16, 1981), and Tucker v. State, No. 52,829, 403 So.2d 1274 (Miss.Sup.Ct. September 16, 1981), cases arising out of the same circumstances as the present case.

We find that Henry’s additional assignment of error does not merit discussion. Therefore, this cause is affirmed.

AFFIRMED.

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


author: BOWLING, Justice,

text:
    Eddie JONES v. Robert E. ACKERMAN.
    No. 52870.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    Paul M. Neville, Meridian, for appellant.
    Robert D. Jones, Martin & Jones, Meridian, for appellee.
    Before SMITH, P. J., and WALKER, and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant Eddie Jones appeals from a decree of the Chancery Court of Lauderdale County granting appellee a permanent injunction together with monetary damages and attorneys’ fees.

Appellee, Robert E. Ackerman, owned a restaurant in Meridian, Mississippi, with a portion of the restaurant being what is commonly known as a “lounge.” Appellee leased this lounge area to appellant. A short time thereafter, in some manner not clarified in the record, and in connection with a possible option to purchase the restaurant by appellant Jones, appellant loaned appellee the sum of $5,000 and received from appellee the following instrument:

26 Feb. 1980
I certify that I, Robert E. Ackerman, have received of Eddie Jones the sum of $5,000 to be repaid by 15 May 1980 at the interest rate of 10 percent.
As secure (sic) I pledge my interest I have in the property known as Virginia Restaurant.
In the event of default, I Robert E. Ackerman, agreed (sic) to pay all costs for attorney fees to recover said amount of $5,000 plus interest.
/s/ Robert E. Ackerman

May 15, 1980, passed without appellant being paid the loan. The subsequent events are rather bizarre, to say the least. On June 6, 1980, appellant Jones collected a group of his friends and admittedly armed with firearms and other instruments broke into appellee’s restaurant and took over the entire premises after it had closed for the day. These alleged debt “self-helpers” occupied the premises overnight and until the next afternoon, when they were served with a temporary injunction from the chancery court upon the petition of appellee. Appellant after being served with the injunction called off the “self-help” he was using to take over the alleged pledged property to which he claims to be entitled to under the terms of the above set out instrument.

Appellant filed his motion to dissolve the temporary injunction. There is no need to lengthen this opinion by quoting the testimony of the parties and their witnesses. There was an abundance of testimony requiring the lower court to deny appellant’s motion to dissolve the injunction and issue its decree making the injunction permanent.

On August 20, 1980, the lower court held a hearing to consider the request in the original petition for damages done to appel-lee’s property and for attorneys’ fees. At this hearing, the parties stipulated that no new evidence would be introduced, but that the court would decide these questions on the record made in the attempted dissolution proceedings. The chancellor issued the decree reaffirming the injunction was to be permanent. The decree further allowed ap-pellee items of damages, plus lost profits, in the total sum of $1,654. These damages included various things, from the consumption by the self-helpers of an apple pie to the disappearance of $800 in cash. There was no testimony whatever to refute the various items of damage.

The court further ordered appellant to pay to appellee attorneys’ fees in the sum of $1,200.

Appellant contends that the chancellor erroneously failed to dissolve the injunction, erred in issuing a permanent injunction, and in assessing damages and attorneys’ fees.

In regard to the alleged error in not dissolving the temporary injunction, we need only to state that the record is clear that appellant took the law into his own hands with his friends. His contention that he had statutory authority so to do under the Uniform Commercial Code is without any merit.

The question of the allowance of damages to the original petitioner who secures a permanent injunction and attorneys’ fees upon him receiving a successful conclusion, is not without some difficulty. These questions have not been answered precisely by the Court in any case involving the facts and circumstances hereinabove related. In regard to the question of damages, V. Griffith, Mississippi Chancery Practice, § 437, p. 434 (2d ed. 1950), seems to settle the question. There it is said:

Injunction ordinarily draws entire cause into equity.
But the subject matter of the jurisdiction to grant an injunction, as regards the various cases or occasions calling for its exercise in one form or another, belongs to the substantive law, is not within the scope of a text on procedure and cannot, therefore, be further enlarged upon here, except that it must be noticed, as having a procedural connection, that in our state, as a general rule, the equity of the injunction will be sufficient to draw the whole case into equity for a full determination of all its features, although all other features be purely of law, and this, not only because of the long settled judicial policy of our state that when a cause comes into equity for one purpose the court acquires jurisdiction of it, for all purposes but because also of an express provision in our state constitution that in all cases where the chancery court heretofore exercised jurisdiction auxiliary to courts of common law it may exercise jurisdiction to grant the relief sought although the legal remedy may not have been exhausted or the legal title established by a suit at law; and there is another subject so closely related to procedure that a summary of it ought to, and will be included at this point, and that is the matter of enjoining proceedings at law and prohibiting the enforcement of judgments.

It would only lengthen court procedure to require appellee to file a separate suit in the county or circuit court to recover alleged damages. The chancery court took jurisdiction of the parties and the controversy between them when the bill of complaint for an injunction was filed. We, therefore, hold that the chancery court had jurisdiction to proceed with a determination of whether or not the damages requested in the bill of complaint were proper and should be allowed. As hereinabove stated, there was no proof whatever to offset the positive proof of appellee, regarding the damages allowed by the chancellor, and we cannot say that the chancellor was manifestly wrong in any item of damages allowed.

A different question arises when we consider whether the chancellor had authority to allow attorneys’ fees to the appellee in pursuing his injunctive relief. We find no authority one way or the other on this question. The Legislature has not seen fit to grant such authority. It only has granted authority for the chancellor to allow damages to the respondent in injunction proceedings in the event the injunction was wrongfully sought. Miss.Code Ann., § 11— 13-37 (1972). See also Griffith, supra, §§ 464 — 465. We are, therefore, forced to conclude that the chancellor was in error in allowing attorneys’ fees to appellee, and the cause, as to that portion of the decree, is reversed and rendered here.

We, therefore, affirm the cause on all issues except the allowance of attorneys’ fees to appellee in the amount of $1,200 and affirm the granting of a permanent injunction and the decree for damages in the amount of $1,654. We hold that appellee is not entitled to any sum representing attorneys’ fees.

Appellee’s motion to strike portion of brief or limit same is overruled.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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


author: HAWKINS, Justice,

text:
    John IVORY v. STATE of Mississippi (Eddie Lucas, Warden, MDC).
    No. 52844.
    Supreme Court of Mississippi.
    Sept. 30, 1981.

      John Ivory, pro se.
    Bill Allain, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

John Ivory appeals from an order of the Circuit Court of Sunflower County, denying without a hearing thereon his Petition for a Writ of Habeas Corpus and other relief. We reverse and remand for a hearing on the merits.

The issue raised on this appeal is whether a prisoner of the Mississippi Department of Corrections who has been released under a supervised earned release program authorized by statute, and later apprehended for violation of the rules promulgated thereunder, is thereby denied credit on his sentence for the period of time he was released under such program.

In March, 1972, Ivory was convicted of the crime of armed robbery in the Circuit Court of Clay County and sentenced to serve a term of thirty (30) years in the state penitentiary at Parchman. On April 28, 1977, he was released under the Supervised Earned Release Program (SER) authorized by 1977 Miss.Laws, Ch. 479, § 4 (codified in Mississippi Code Annotated 47-5-171 (Supp. 1980)). He was returned to the penitentiary on September 10, 1979, for violating the terms of his SER agreement.

On November 13, 1980, he filed pro se in the Circuit Court of Sunflower County a “Petition for Writ of Habeas Corpus or in the Alternative, Request for Order to Show Cause” against the warden and others, alleging the above facts and that he had been advised upon his return by the prison officials that he would not be given credit for time served. He requested a hearing to determine whether he was entitled to such credit and to parole consideration.

The circuit judge dismissed the petition on two grounds: (1) a SER releasee who is apprehended for violation is in the same category as a parolee who violates the terms of his parole, and (2) the appellant was not eligible for the SER program.

We find no legislative intent to place persons who violate parole in the same category as a prisoner apprehended for violation of the SER program, and further, that Ivory was eligible for the SER program under the law in existence when he was placed on the program. Therefore, we remand this cause for hearing on the petition.

Addressing first the holding of the circuit judge that Ivory was ineligible for the SER program, it is to be noted that Section 4(l)(d) of Chapter 479, Mississippi Laws 1977 provided as follows:

(d) No person shall be eligible for supervised earned release under this section who shall on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm. (Emphasis added)

The above statute was approved April 14, 1977, and Section 9 of the Act provided it should be in force and effect after its passage. It is therefore clear that at the time Ivory was released on April 28,1977, he was eligible for such program.

This law has since been amended, and sub-paragraph (I)(d) of the present Mississippi Code Annotated § 47-5-171 reads as follows:

(d) No person shall be eligible for supervised earned release under this section who shall have been convicted of a crime committed through the display of a deadly weapon, or by other means likely to produce death or serious bodily harm, (eff. July 1, 1978)

While he would not be eligible for SER under the present law, he was at the time of his release on April 28, 1977.

Although release under parole and the SER program place many identical and very similar restrictions upon the convict, there are differences.

Mississippi Code Annotated § 47-7-27 (Supp.1980) clearly provides that a parolee, whose parole has been revoked, is not entitled to credit on his sentence for the time he was out on parole:

The board may then, or at any time in its discretion, terminate such parole or modify the terms and conditions thereof. In the event the board shall revoke parole, the offender shall serve the remainder of the sentence originally imposed unless at a later date the board shall think it expedient to grant the offender a second parole. In case a second parole shall not be granted, then the offender shall serve the remainder of the sentence originally imposed, and the time the offender was out on parole shall not be taken into account to diminish the time for which he was sentenced.

The SER program contains no such penalty for a person who is apprehended or whose release is terminated for violation of the terms of his release.

In the absence of the clear statement of legislative intent, apparent in § 47-7-27 that a parole violator is not entitled to have his sentence diminished for the time he was on parole, we would be compelled to hold such time should be taken into account as credit on the appellant’s sentence. There being no similar penalty in the SER program, we cannot hold that Ivory, as a matter of law, must be denied credit on his sentence because he was terminated or apprehended for violation of his SER agreement.

§ 47-7-27 (Supp.1980) likewise contains the following provisions relative to a parole violator:

The field supervisor, after making an arrest, shall present to the detaining authorities a similar statement of the circumstances of violation. The field supervisor shall at once notify the board of the arrest and detention of the parolee and shall submit a written report showing in what manner the parolee has violated the conditions of parole. An offender for whose return a warrant has been issued by the board shall, after the issuance of such warrant, be deemed a fugitive from justice.
* * * * * *
At the next meeting of the board held after the issuance of a warrant for the retaking of any offender, the board shall be notified thereof; and if the offender shall have been taken into custody, he shall then be given an opportunity to appeal to the board in writing or in person why his parole should not be revoked. The board may then, or at any time in its discretion, terminate such parole or modify the terms and conditions thereof.

On the other hand, no violation is even required under the SER program in order to terminate the release of a convict. Paragraph 11 of the Statement of Conditions Under Which Supervised Earned Release is Granted, signed by the convict, reads as follows:

11. It is understood by me that I am at all times, during this Supervised Earned Release, a subject of the Department of Corrections and that I accept this assignment with the understanding that, in addition to the foregoing specific conditions of Supervised Earned Release, if at any time while this is in effect I conduct myself, whether by work, writing or act, so as to indicate to the Department, that in their discretion the reasonable probability of rehabilitation on which this Supervised Earned Release has been granted does not exist; or, if in the opinion of the Department the remaining time on Supervised Earned Release is incompatible with the welfare of society, the Department has the right, without notice or hearing to the prisoner except as otherwise provided by statute, to revoke this Supervised Earned Release; and the Field Supervisor or other authorized personnel of the Department of Corrections is authorized to effect my arrest pending revocation.

There is no hearing required by statute upon the termination of such release as required for the revocation of a prisoner’s parole.

We, therefore, believe Ivory was entitled to an answer to his petition and a hearing.

We do not pass upon the merits of his petition, this being for the trial judge, nor construe in any manner whether he is entitled to parole consideration, this being a matter entirely within the discretion of the parole board. Of course, in consideration of a pro se pleading, the substance should be noted, rather than the title of same. Watts v. Lucas, 394 So.2d 903 (Miss.1981).

REVERSED AND REMANDED.

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


text:
    Danny Lee SHEPHERD v. STATE of Mississippi.
    No. 52810.
    Supreme Court of Mississippi.
    Sept. 30, 1981.
    A. M. Murphy, Lucedale, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, BOWLING and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

This is an appeal from the Circuit Court of George County by Danny Lee Shepherd for the conviction of burglary and larceny and sentence of five (5) years. We reverse and render.

At some time during the night of April 9, 1980, the Western Auto Associate Store in Lucedale, owned and operated by Mr. W. T. Bounds, was burglarized. Approximately $710.00 worth of merchandise was stolen, consisting of knives, walkie-talkie sets, tape players, and various other items of personal property. Mr. Bounds first noticed the back door of his store had been opened the previous night about 45 minutes after he went to work the following morning.

Around 11:00 p. m. on the same evening the store was burglarized, Darwin Walley and Mitchell Guinn, town police officers on patrol, noticed Sheperd’s truck parked in an alleyway behind Lee Havard’s Washerteria. This washerteria was located on Main Street 200-300 yards from the store, or about one and one half blocks away. About 50-60 steps from Mr. Bounds’s store was an abandoned ice house.

Officer Walley left the truck looking for Shepherd and approximately 30 minutes later heard Officer Guinn calling. He returned to the truck and observed Guinn and Shepherd behind the truck. Shepherd had a new knife (of the same brand as those stolen) in a plastic bag and box, which he said he had bought in Mobile. Shepherd told the officers he was there to wash his clothes, but Officer Walley testified that he did not see any clothes. Shepherd was not arrested, and the knife was not taken. Later that night Walley saw Shepherd at a filing station in Lucedale.

The next day Police Chief Mendel Wachs-man, in investigating the then discovered burglary, found numerous knives which had been stolen at the side of the washerteria building. Some were wrapped in a slip-over shirt, and others were thrown around on the grass beside the building. A shotgun belonging to Mr. Bounds was found in the ice house, yet the indictment failed to list a shotgun as having been stolen. Officer Guinn was assisting Chief Wachsman in the investigation the next day.

Timothy Shepherd, a bother of the defendant, when picked up for questioning by the officers, gave a written statement which stated the slip-over shirt found by the officers was, “one that my brother, Danny, had wore.” When called as a state’s witness and shown a shirt, however, Timothy Shepherd denied that it was the same one.

When the state rested, the court overruled the defense motion for a directed verdict.

Without reviewing the dubious nature of the hearsay and indirect method by which some of the evidence was adduced, especially the shirt, we are compelled to agree with the experienced and skilled circuit judge’s comment: “I don’t remember ever trying a case any weaker than this case.”

The evidence in this case could justify no more than a suspicion. No one testified this was the shirt the defendant was wearing the day of the crime, or whether he had a shirt on when he was seen the night of the crime (Officer Walley could not remember, and Officer Guinn never testified). Courts cannot permit a conviction to stand based merely upon suspicion, Wooldridge v. State, 274 So.2d 131 (Miss. 1973).

Reversed and appellant discharged.

REVERSED AND APPELLANT DISCHARGED.

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