author: SUGG, Justice, for the Court:

text:
    Eddie Jerome TUBBS v. STATE of Mississippi.
    No. 52732.
    Supreme Court of Mississippi.
    Aug. 12, 1981.

      J. Richard Barry, Thomas L. Webb, Bour-deaux & Jones, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   SUGG, Justice, for the Court:

Eddie Jerome Tubbs was convicted in the Circuit Court of Lauderdale County for the capital murder of Hubert Marshall Brand and sentenced to life imprisonment. One of the nine assignments of error is that the verdict of the jury was against the overwhelming weight of the evidence.

On September 17,1979, Brand’s body was found in a trash dump about eight miles west of Meridian, Mississippi. Brand had been severely beaten on his head, neck, shoulders and abdomen. An autopsy was performed on September 18 by Dr. Gonzales, a forensic pathologist. His examination revealed fractured bones in the head, neck and chest, contusion and bruising of the anterior portion of the heart, and hemorrhaging in the abdominal area due to a laceration of the liver. The doctor also found evidence of manual strangulation. The doctor testified that either the head trauma, the chest trauma, abdominal trauma or the manual strangulation could have singly caused the death of Brand. The autopsy was performed at about 8:00 p. m. on September 18 and in the opinion of the pathologist, Brand’s death occurred approximately 72 hours earlier.

Brand was an automobile salesman, employed by Nelson Hall Chevrolet in Meridian. He was seen leaving his place of employment between 5:00 and 5:30 p. m. on September 15 in a green Chevrolet Impala bearing a dealer tag. At approximately 5:30 p. m., two witnesses saw him drive into the parking lot of a Burger Chef Restaurant accompanied by a young black male who ordered some food. Both witnesses identified the black male as Tubbs and stated that, as the car left the parking lot, they observed that it had a dealer’s tag on it.

Tubbs returned to his home in Meridian where he lived with Lynda Arrington, Leon Harrison and Angie McCoy during the early evening hours of September 15. Harrison and McCoy both stated that Tubbs had in his possession a brown three-fold wallet, some Nelson Hall business cards, a drivers license, a silver digital watch and a small amount of cash when he arrived at his home. Both witnesses heard the defendant say he had beaten a man and taken his car somewhere outside Meridian and they saw Tubbs burning something on the back steps of their home later. The following day McCoy found the remains of what appeared to be a wallet and some Nelson Hall business cards when she swept the back steps. When Tubbs left his home the night of September 15, Harrison and McCoy both stated he departed in a green Chevrolet Impala bearing a dealer’s tag. Brand’s wife testified her husband owned a brown three-fold wallet and a silver digital watch.

Tubbs returned home early Sunday morning, September 16. His girlfriend, Lynda Arrington, noticed an unfamiliar automobile in front of the house and asked Tubbs who was driving the car. He replied that he was. Later in the morning he drove her to work in the same automobile, a green Chevrolet Impala bearing a dealer’s tag, and she saw a plaid jacket on the floorboard of the automobile when she entered it. Three other witnesses said they saw Tubbs late Sunday night driving a light colored Chevrolet Impala bearing a dealer tag.

The following morning, September 17, Lynda Arrington awoke to find Tubbs sitting on the couch looking at some check books which had the initials H and B on them. Before leaving, Tubbs put the check books in a paper bag and placed them under the couch. After he left, Arrington heard on a television newscast that Hubert Brand was missing and had been wearing a plaid jacket at the time of his disappearance. Remembering the plaid jacket which she saw in the automobile, she got the check books from underneath the couch and found the name of Hubert Brand on them. When Tubbs returned she confronted him with these facts, a heated argument followed, and Tubbs left the house.

Brand’s automobile was found on the morning of September 19 directly across the street from the home of Tubbs, Arrington, Harrison and McCoy. One latent fingerprint was lifted from the inside of the door jamb where the right rear door closes on the post of the automobile, and was identified as being the fingerprint of Tubbs. Other fingerprints were found on the automobile but were not identified.

The following handwritten note was introduced in evidence:

The note was discovered under rather unusual circumstances. When the officers found the body of Brand on September 17, Adolph Harris was slumped over in the front seat of his automobile at the trash dump. The rear of Harris’ automobile was about ten feet from Brand’s body. Harris told the officers that he backed his car into the area, and while standing at the rear of his automobile saw a pair of glasses on the ground. He picked the glasses up, placed them in the trunk of his automobile and it was subsequently determined that the glasses belonged to Brand. Harris was arrested and charged with the murder of Brand. On September 21 a habeas corpus hearing was held in the courthouse and about the noon hour a South Central Bell envelope was found on the steps of the Lauderdale County Courthouse. The envelope and its contents were carried to the Sheriff’s office and contained the note that was introduced in evidence along with other items belonging to Brand. The envelope and its contents were introduced in evidence.

The handwriting expert from the Mississippi Crime Laboratory testified that, in his opinion, both the note and the handwriting on the South Central Bell envelope were in the handwriting of Tubbs. He testified he reached this conclusion by comparing the note with known specimens of Tubbs’ handwriting which consisted of a statement written by Tubbs to his parole officer and two notes written by Tubbs while he was in jail. Tubbs was ordered by the court to furnish the state a handwriting exemplar. He refused to comply with this order, so it was necessary for the state to introduce and rely on the three known exemplars of Tubbs’ handwriting.

The defendant did not testify but presented three witnesses who said they saw him at the Hole in the Wall Club in Meridian on the night of the murder. One witness arrived at the Club about 7:30, another about 7:45 and another about 8:00, and they stated that they were in the presence of the defendant at the club from the time they arrived until about midnight. He also offered Larry Covert, a Meridian policeman, as a witness. Covert testified that he saw Brand alone in a light green Chevrolet that was a “dealer car” between 5:00 and 8:00 p. m. on September 15. He observed Brand leave his gasoline service station and proceed west on Eighth Street. He stated that he gave the police a statement that he saw Mr. Brand between 7:30 and 8:00 p. m. and on cross-examination, said he told the secretary at the detective bureau he saw Mr. Brand between 7:30 and 8:00 because she said she needed a time.

Defendant contends that a verdict of the jury was against the overwhelming weight of the evidence. Tubbs’ contention on this point may be summarized as follows: (1) no one saw him kill Hubert Marshall Brand; (2) he was not seen at the place where Brand’s body was discovered; (3) the evidence did not rule out the possibility that the fingerprints found on the right rear door post of Brand’s car were put there on Sunday, September 16, one day after Brand’s death; (4) there was no evidence other than the questionable testimony of Harrison and McCoy that he had killed anyone; (5) there was no evidence presented that would prove he was guilty of robbery other than the fact that he was in the victim’s car and had in his possession some of the victim’s business cards and checks; (6) that a police officer saw Brand alive after the time his alibi witness testified they were with Tubbs at a club in Meridian; (7) a white male, Charles Warren, could not be found to testify at the trial. (Warren had led law enforcement officers to the scene where the body was found where Warren and the victim had previously gone to have homosexual relations. Tubbs argues that Warren’s absence, combined with the fact that Brand had been robbed before at the place where his body was found, should have created some doubt in the minds of the jury.) (8) All of the above facts, coupled with law enforcement officers finding Adolph Harris slumped in the seat of his car with the lights out, ten feet from the victim’s body, with the victim’s glasses in the trunk of his car, with Harris claiming he was reading a dog racing form and preparing to go treasure hunting, points the finger of guilt in other directions.

Tubbs then argues that, assuming everything testified by the state’s witnesses is true, there still remains a reasonable hypothesis that some person other than he killed Brand; therefore, the verdict of the jury is against the overwhelming weight of the credible evidence and the case should be reversed.

The evidence for the state may be summarized as follows: (1) Hubert Brand left his place of employment between 5:00 and 5:30 p. m. on September 15 in a light green Chevrolet Impala bearing a dealer’s tag; (2) Tubbs and Brand were seen at a Burger Chef together shortly thereafter and drove off in an automobile bearing a dealer's tag; (3) Tubbs returned to his house about 7:00 to 7:30 p. m. on September 15 and was seen by Harrison and McCoy, who lived in the house, in possession of a brown trifold wallet, Nelson Hall Chevrolet business cards, a drivers license, a silver digital watch and a small amount of currency; (4) Brand was a salesman for Nelson Hall Chevrolet, owned a brown trifold wallet and a silver digital watch; (5) upon returning home Tubbs told Harrison he had beaten up a car dealer and taken his car earlier that night and explained he thought the man had money; (there was only $7.00 in cash among the personal effects lying on the bed beside Tubbs when he made these statements) (6) although these remarks were addressed to Harrison, McCoy, overheard the conversation; Tubbs burned some articles on the back steps and the remains of a wallet and business cards were found by McCoy the next morning; (7) Tubbs left driving a new light green Chevrolet bearing a dealer’s tag; (8) Tubbs’ girlfriend, Lynda Arring-ton, saw Tubbs in possession of check books with the name Hubert Brand on them; (Tubbs carried Arrington to work in a Chevrolet Impala bearing a dealer’s tag with a plaid jacket on the floorboard of the automobile; (Brand owned a plaid jacket) (9) Tubbs’ fingerprints were found on the automobile which Brand was driving the night he disappeared; (10) the handwriting on the outside of the envelope and a note in the envelope found at the courthouse on the day the habeas corpus hearing was held involving the initial suspect in the case was identified as Tubbs’.

This is a circumstantial evidence case and it is well established that in circumstantial evidence cases, it is necessary for the State to prove the guilt of the defendant not only beyond a reasonable doubt, but also to the exclusion of every other reasonable hypothesis consistent with his innocence. Sanders v. State, 286 So.2d 825 (Miss.1973). See also cases in Mississippi Digest, Criminal Law, Key Number 552(3).

Tubbs’ defense was an alibi and it is well established that a jury is not under a duty to accept an alibi defense, but must consider all of the testimony in determining the guilt or innocence of an accused. An alibi defense presents a question of fact to be resolved by the jury. In Spikes v. State, 302 So.2d 250 (Miss.1974), we stated:

The jury was not required to accept this alibi. Its duty was to evaluate the testimony of the witnesses for the State and defendant, and to determine whether the evidence showed beyond a reasonable doubt that appellant was guilty. The State’s evidence was contradictory of that of appellant concerning an alibi. It was a jury issue. Newton v. State, 1956, 229 Miss. 267, 90 So.2d 375. (Kelly v. State, 239 Miss. 683, 690, 124 So.2d 840, 842 (1960). (302 So.2d at 251)

Accord, Johnson v. State, 359 So.2d 1371 (Miss.1978.)

The evidence presented a typical case to be determined by the jury, on conflicting facts. The state presented a strong circumstantial evidence case, and we are of the opinion that it was sufficient to prove the guilt of Tubbs, not only beyond a reasonable doubt, but also to the exclusion of every other reasonable hypothesis consistent with his innocence. We hold the verdict of the jury was not against the overwhelming weight of the credible evidence.

At the conclusion of the State’s case, Tubbs moved to exclude the evidence and direct a verdict of acquittal as to the underlying charge of robbery, and assigns as error the action of the trial judge in overruling his motion. After the motion was overruled Tubbs presented evidence in an attempt to establish an alibi defense and is thereby precluded from raising any issue on appeal with regard to the denial of his motion for a directed verdict. Lucas v. State, 381 So.2d 140 (Miss.1980); Watts v. State, 317 So.2d 715 (Miss.1975); Hankins v. State, 288 So.2d 866 (Miss.1975).

Although Tubbs may not raise this issue on appeal, the evidence was sufficient to withstand the motion for a directed verdict.

Appellant also contends that reversible error was committed when Deputy Sheriff Ernest Jackson stated that Randy Eakes was a parole officer. Tubbs filed a motion in limine to prohibit the State from making reference to any prior criminal record of the defendant unless the defendant testified in his own behalf. When the motion in limine came on for hearing, the trial judge stated that the state would be allowed to impeach Tubbs by showing prior convictions only if Tubbs took the stand. When the witness Jackson was testifying, the following question was propounded to him, and he gave the following answer:

Q. Officer Jackson, I’m going to hand you some items; first, Exhibit A and Exhibit B marked for identification only, and ask you if you can identify that item?
A. Yes. One sheet is a voluntary statement and the other one is a rights form that was received from Randy Eakes, Parole and Probation Officer.

There was no objection made to this potentially prejudicial testimony. It has long been the rule that we confine ourselves to objections made to evidence in the trial court, regarding all other objections as waived. This was enunciated in McComb v. Turner, 22 Miss. 119, 14 S. & M. 119 (1850) and has been followed in numerous cases since that time.

It is also apparent that, when the witness identified Randy Eakes as a parole officer, his answer was not responsive to the question asked by the State’s attorney. We do not consider an unresponsive answer of a witness as an attempt to violate the ruling of the judge on the motion in limine.

Randy Eakes was later called as a witness, and as previously instructed by the court out of the presence of the jury, made no reference to Tubbs’ status as a parolee. There was no attempt on the part of the State to elicit from Eakes either his occupation or his relationship with Tubbs.

Tubbs also argues under this assignment of error that the voluntary statement given by him to Eakes and used by the state as a handwriting exemplar made reference to a previous offense. This argument is not well founded because all language pertaining to a warrant for a previous offense was excised before the statement was introduced in evidence. For the reasons stated, we find no merit in this assignment of error.

Tubbs assigns as error the admission of two black and white photographs showing Brand’s body when it was found. Tubbs contends the photographs were cumulative of other evidence, had no probative value, and were used only to inflame the jury. The mere fact that a photograph may be cumulative of other evidence does not extinguish its probative value. 3 Wharton’s Criminal Evidence, § 637, p. 289, (Thirteenth Edition, Torcia (1973). The photographs showed Brand’s pockets were turned out thereby indicating Brand was robbed, they were not particularly gruesome; therefore, we hold they were relevant and the trial court did not abuse its discretion in allowing the photographs to be admitted in evidence.

Tubbs assigns as error the failure of the trial judge to provide funds to enable him to employ a fingerprint expert and a questioned documents expert. He argues that if his motion to hire these experts had been granted, the fingerprint expert might have identified the other fingerprints found on Brand’s car, and another questioned documents examiner might have reached a different conclusion than that reached by the expert who testified for the State.

When the motion came on for hearing, the trial judge advised counsel:

The experts — until the legislature acts, I do not feel that I can make new laws or spend money without authority, but I will try to see to it that your client has the benefit of an expert if it will help, in my judgment, get to the truth of the issues here, the important issues in this trial. You will have to submit me the name of the expert, bring him here, and let me have some interview with him. I just won’t allow you an access to spend money without an additional order.

Tubbs relies on Bradford v. U. S., 413 F.2d 467 (5th Cir. 1969), in which the Court stated:

The government’s case against Was-ham depended almost entirely upon the testimony of the two experts. It was therefore necessary, if Washam was to combat this evidence, that he have the assistance of other handwriting and fingerprint experts.
We believe that since expert testimony could have been decisive on all counts the error taints the entire case. (413 F.2d at 474, 475)

We hold that no reversible error was committed by the trial judge for two reasons. First, in Bradford, the court held that expert testimony could have been decisive on all counts. This is not true in the case before the Court. We therefore distinguish Bradford factually because the State’s case did not depend almost entirely upon the identification of Tubbs’ handwriting and fingerprints. The State presented a strong case by its other evidence which would have been sufficient to sustain the verdict of the jury even if the fingerprint and handwriting evidence had been omitted.

Second, we interpret the ruling of the trial judge to mean that he would have provided the necessary experts for the defendant if counsel had complied with the request of the judge to submit the names of experts to him and let the court interview them. The defendant did not submit any names of experts, did not provide the court the opportunity to interview experts, so he is in no position to put the trial judge in error.

Tubbs assigns as error the refusal of the trial judge to sustain his pretrial motion to empanel separate juries for the guilt and sentencing phases of his trial. This question has been settled adverse to the contentions of Tubbs in Jackson v. State, 337 So.2d 1242 (Miss. 1976). See also section 99-19-101 Mississippi Code Annotated (1977 Supp.).

Tubbs also argues under this assignment of error that he should have been given twenty-four (24) peremptory challenges rather than the twelve (12) permitted by section 99-17-3 Mississippi Code Annotated (1972). If Tubbs had been granted a separate jury for the sentencing phase of the trial, he would have been entitled to additional peremptory challenges; however, since the jury tried both phases of the bifurcated trial, only twelve (12) challenges were authorized.

Tubbs assigns as error the failure of the trial judge to appoint co-counsel earlier than fifteen (15) days before his trial. On May 6, 1980, the trial judge denied the motion for appointment of co-counsel and stated:

That J. Richard Barry is a licensed, practicing attorney having graduated from the University of Mississippi; he is a member or an associate of the law firm of Bourdeaux & Jones; and also, associated with Thomas—Attorney Thomas Webb of that firm, Bourdeaux, Jones & Webb, maybe, and Mr. Hammack, and counsel has been observed by the court since his graduation from the University of Mississippi, been observed by the court in his native county of Clarke while he was still in high school, and while attending the University of Mississippi Law School he worked as a part time Deputy Sheriff in Clarke County. He is an able young man; he knows how to investigate criminal cases, or investigate cases. Let the record reflect that he has raised most every conceivable point in his motions at this time, filed for and on behalf of Eddie Jerome Tubbs and I feel that Eddie Jerome Tubbs has an excellent attorney, one that is able to represent him and see that he gets a fair and impartial trial. And if it comes down to the trial of the case, I will allow you to renew your motion at any time I feel that due, maybe, to a lack of experience in the courtroom, you do need co-counsel, but I have not observed that as of this point, and your motion is denied as of now.

On June 3, 1980, the motion was renewed and the court appointed Thomas Webb as co-counsel after ascertaining that he was the attorney Tubbs wanted to act as co-counsel. The trial of defendant began on June 18,1980, and both attorneys represented him at the trial. Accordingly, we hold that the trial judge did not commit error by failing to appoint co-counsel more than fifteen (15) days before the trial date.

Tubbs alleges as error the trial court’s failure to grant his motion for a change of venue because of the publicity surrounding Brand’s murder.

The trial judge reserved his decision on the motion until voir dire of the jury had been completed. Thus,

The trial judge in the case at bar had the opportunity to view the prospective jurors, watch their demeanor and form an opinion as to whether or not a fair trial could be given in the county. Parks v. State, 267 So.2d 302, 304 (Miss. 1972).

Furthermore, of the thirteen (13) witnesses presented by the defendant on the motion for a change of venue, eight (8) thought he could get a fair trial, and of the five (5) remaining, only two (2) consistently held to their original statements made on direct examination that the defendant could not get a fair trial. The State offered witnesses who were of the opinion Tubbs could get a fair trial. The rule in such situations was established by this Court in Shelton v. State, 156 Miss. 612, 126 So. 309, 393 (1930).

Where the testimony is to the effect that the people of the county have not prejudged the defendant’s case, and that there is no prejudice against the accused, and the voir dire examination of the prospective of the jurors shows that a fair proportion of the jurors of the county are qualified for service in the case, it is not error for the trial judge to overrule a motion for a change of venue.

The trial judge carefully exercised his discretion and properly held that pretrial publicity would not prevent Tubbs from obtaining a fair trial in Lauderdale County.

Finding no reversible error, we affirm.

AFFIRMED.

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

      . This exhibit consists of a South Central Beil Telephone Co. envelope containing a cash ticket from J. C. Penney Co., Inc.; a Neiman-Mar-cus credit charge in the name of Mr. Hubert Brand; a Merchants & Farmers Bank card, No. 073 216 6 in the name of Mr. or Mrs. Hubert M. Brand; a membership card, Fraternal Order of Police, Associate Member in the name of Hubert Brand; a Social Security Card, Account No. [ XXX XX XXXX ], in the name of Hubert Marshall Brand; a Registration Certificate to vote in the name of Hubert M. Brand, No. 1696; an identification card from American Fidelity Assurance Co., Account No. 1103727 in the name of Hubert M. Brand; a Nelson Hall Chevrolet card with the name of Hubert M. Brand on it and a home phone number and an officer phone number; a Veterans of Foreign Wars membership card in the name of Brand, Hubert M„ No. 3973330, Post 79; a State of Miss. Driver’s License, No. [ XXX-XX-XXXX ], in the name of Brand, Hubert M.; check No. 087 on-account of Mr. or Mrs. Hubert M. Brand, made payable to (blank) in the amount of $230.00, dated 9/14/79, for carpenter’s work and has a signature, Mrs. Hubert Brand on the bottom of it.

      . Tubbs did not testify, and the only explanation of the unusual manner in which he obtained the automobile and the check books of Brand was elicited from the State’s witness, Lynda Arrington. She said Tubbs told her he got the automobile from a man named Young-blood in Toomsuba. She did not find any Youngbloods listed in the Toomsuba telephone directory, and when she confronted Tubbs with this fact, he changed his story and said a dealer from Nelson Hall let him “try the car out.” She further said Tubbs told her a “guy” named Fly threw the check books at him out of a car.

      . The following was excised from the statement: “I put the curtáis over them and went back to the house about 1 hour or half the police come with a warrent for larncy."


source: Caselaw Access Project

license: Public Domain

text:
    Everett V. KNIGHT & Melissa M. Knight v. VARNER REAL ESTATE, INC. d/b/a Joe Varner Real Estate Agency.
    No. 52863.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    Dean Andrews, Jr., Ramsey, Bodron, Thames & Robinson, Vicksburg, for appellant.
    David M. Sessums, Varner & Parker, Vicksburg, for appellee.
    Rehearing Denied Sept. 16, 1981.
   Appeal from Circuit Court, Warren County; John W. Prewitt, Judge.

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

AFFIRMED.


text:
    Dorothy M. Breland ROBERTSON v. Roy G. BRELAND.
    No. 52809.
    Supreme Court of Mississippi.
    Aug. 19, 1981.
    J. W. Kellum, Sumner, for appellant.
    Jon M. Barnwell, Greenwood, for appel-lee.
    Rehearing Denied Sept. 16, 1981.
   Appeal from Chancery Court, Leflore County; Wm. H. Bizzell, Chancellor.

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

AFFIRMED.


author: BOWLING, Justice, for the Court:

text:
    Henry H. BRELAND v. Martha E. Breland BRYANT.
    No. 52694.
    Supreme Court of Mississippi.
    Aug. 19, 1981.

      John M. Deakle, Hattiesburg, for appellant.
    John M. Dunnam, Jr., New Augusta, for appellee.
    Before SMITH, BOWLING and HAWKINS, JJ.
   BOWLING, Justice, for the Court:

A recitation of the facts and issues in this case as shown by the record would make a good novel. The name of the plot should be “Land Is Thicker than Blood.” The case comes to this Court from the Chancery Court of Perry County. It involves several issues; mainly, an alleged fraudulently secured deed, a request for a bill of review, and the homestead status as to one tenant-in-eommon owner of the property. Appellant and appellee are son and mother.

On March 23, 1979, appellee filed her sworn Bill of Complaint in the Chancery Court of Perry County against appellant with the sole contention being that on October 4, 1975, appellant fraudulently induced appellee to relocate her residence to the home of appellant in Wilmer, Alabama. Appellee was 84 years of age at the time. She alleged that appellant carried her to the office of an attorney in Pascagoula, Mississippi, and secured appellee’s signature on a quit claim deed for appellee’s one-seventh interest in the land in Perry County. The other % interest was owned by the children of appellee and her deceased husband, Homer Breland, who died on December 5, 1970.

Appellant immediately employed attorney George M. Simmerman of Pascagoula, who had represented him on prior occasions. Attorney Simmerman filed an answer to the Bill of Complaint on April 16, 1979, in which all fraudulent and undue influence alleged by appellee in her Bill of Complaint was denied under oath. He affirmatively alleged he had paid all taxes on the property in question subsequent to his father’s death and had contributed substantially to the maintenance and upkeep of the property-

It developed that attorney Simmerman was ill with terminal cancer and at the April term of court made this known to the chancellor and to appellant. Due to his illness, the case was continued until the July 1979 term. When that time arrived, it was clear that Mr. Simmerman’s situation had deteriorated, and he had been confined for various periods of time in a hospital in Mobile, Alabama, undergoing specialized treatment. He informed the chancellor that he should be able to try the case in August. The chancellor then entered an order on July 31, 1979, setting the case for vacation hearing on August 28, 1979, with directions that if Mr. Simmerman was not able to try the cause, someone else should appear in his place.

On the morning of August 28, 1979, ap-pellee appeared in court with her attorney. Neither appellant, his attorney Mr. Simmer-man, nor any other attorney appeared. Hereinafter we shall discuss the alleged reasons for this as set out in appellant’s Petition for a Bill of Review. The lower court directed that the cause proceed. On that same date, appellee filed an instrument merely styled “Motion,” which moved the court to set aside and hold for naught the purported deed in question for the reason that at the time of the execution of the deed, the land recited in the deed and the dwelling constituted the homestead of the complainant and her husband, Lewis L. Bryant; that she and the said Lewis L. Bryant were residing together in the dwelling situated on the land described in said deed, and the said Lewis L. Bryant, her husband, never joined in the execution of the deed as required by Section 89-1-31, Mississippi Code 1972 Annotated, and therefore, the purported deed was absolutely void. On the same date an “Order Sustaining Motion,” was executed by the chancellor stating that “the court having considered said motion, the evidence and testimony introduced thereon finds that said motion should be and it is sustained.” Testimony appears in the record taken at the same date from appellee and her husband Lewis L. Bryant. Their original marriage certificate was introduced into evidence showing that appellee and Bryant were married in Stone County, Mississippi, on July 21, 1972.

Evidence was introduced from appellee, whose sole testimony went, to the fact of her marriage to Bryant; that she and Bryant were living together at the “Old Place” in Perry County on the date the deed was executed by her to appellant. When asked whether or not Bryant joined in the deed, she gave no verbal response. It should be pointed out here that she gave no testimony whatever that in any manner touched on the sworn allegations of her Bill of Complaint, but on the other hand contradicted the allegations therein that she had moved to appellant’s home in Alabama and stated under oath that at the time the deed was executed she was living with Bryant at the “Old Place.”

Lewis L. Bryant then testified. He stated that he did not join in the execution of the quit claim deed on October 4,1975; that he was living with appellee on her place at the time as her husband. He further testified that it was his understanding that appellant was to take care of appellee for the rest of her life. As was shown by appellee’s testimony, Bryant gave absolutely no testimony or evidence regarding the Bill of Complaint they came to court to litigate. After receiving the above discussed “Motion” and entering the order thereon, the court executed a Final Decree on the same day [August 28, 1979] setting aside the deed executed by appellee to appellant on October 4, 1975, and ordered that the decree be recorded in the proper records in the Office of the Chancery Clerk. The only indication in the Final Decree as to the basis of the decree was the preamble which stated, “This Cause coming on to be heard on Bill of Complaint, Answer and oral and documentary evidence-; and having heard all of the same and now being fully advised in the premises, the court is of the opinion and so finds that the complainant is entitled to the relief prayed for in her bill.”

As stated above, there was no evidence or testimony whatever introduced before the court regarding the allegations of the Bill of Complaint or the sworn Answer denying its allegations. The decree does not reiterate the finding on the above discussed “Motion.” The order did recite that “her homestead rights in said property be restored unto her for all purposes.”

On April 17, 1980, appellant filed an instrument styled “Bill of Complaint in the Nature of a Bill of Review to Set Aside Decree.” This bill of complaint reviewed the history of the cause and particularly the medical situation of Attorney Simmerman, who died in September 1979, shortly after the Final Decree was entered as described above. He had been confined to a hospital for some time prior thereto. Appellant further alleged that he knew nothing about the hearing but on the other hand had been advised by Mr. Simmerman he would keep him posted and advise him when to be in court. He was not aware that his solicitor had become ill to the extent of impending death. The prayer of the Bill of Complaint requested that it be considered a Bill of Review asking that the said final decree be set aside because of “mutual mistake, surprise or unintentional fraud,” and prayed for general relief.

Appellee filed a general demurrer to the Bill of Complaint and also an answer denying its allegations. The demurrer was overruled.

The cause came on for hearing on August 4, 1980. Appellant testified that he still lived in Wilmer, Alabama, but was born and raised in Perry County, Mississippi. He testified regarding the history of dealing with attorney Simmerman and particularly what he now knew about the situation in 1979, most of which he did not know until later. He stated that he learned about the August 18, 1979, Final Decree for the first time when he went to Perry County to pay taxes on the place in January, 1980. He then began an immediate investigation in order to locate the file previously held by Mr. Simmerman. Along about the time of the decree, Hurricane Frederick had blown ailing Mr. Simmerman’s office away. His widow advised appellant that the recovered files had been divided among seven lawyers. Appellant finally found his file in another lawyer’s office in Pascagoula and immediately employed an attorney to pursue whatever rights he might have. This resulted in filing the Bill of Complaint in the nature of a Bill of Review. No evidence or testimony was introduced by either party regarding the controversy set out in the original Bill of Complaint and Answer. On August 7, 1980, the chancellor entered his decree, “dismissing the Bill of Complaint in the nature of a Bill of Review to Set Aside Decree.” No written or transcribed opinion appears in the record and no reason appears in the decree for denying the relief requested.

Appellant in this appeal propounds two assignments of error:

I. The chancellor erred in not vacating the decree and not resolving the reasonable doubt in favor of appellant and in not granting a hearing on the merits.
II. The chancellor erred in not exercising the intrinsic equity power of the chancery court to set aside the final decree obtained by mistake or unintentional fraud when justice and right so demand.

We are of the opinion that the lower court was in error in failing to grant appellant’s Bill of Review. In Griffith, Mississippi Chancery Practice § 635 (2d ed. 1950), at pages 694, 695, we find the following:

Bill of Review for error apparent. Second. A final decree may be corrected or vacated by a bill of review, but such a bill shall be filed within two years after the date of the final decree in the cause and not after, saving to persons under disability of infancy or unsoundness of mind the like period of two years after the removal of their- disability. A bill of review is one filed to procure an examination and reversal of a final decree, after final adjournment for some material error of law apparent on the face of the decree and the pleadings and proceedings on which it is based, exclusive of the evidence; or upon some material newly discovered matter which was not, and could not, be found and produced by the use of reasonable diligence before the decree in question was entered, or in time for use on a motion for a rehearing. A bill of review for error apparent on the face of the record is in the nature of a writ of error because its object is to have the decree examined and reversed and although it has reference to the former cause, it is not regarded as a continuance of that case, but is in the nature of an original bill, and it is filed and docketed as an independent cause.

We heretofore have seen that at the time of the hearing, on what was supposed to be the original “Bill of Complaint”, there was absolutely no testimony offered regarding any material allegations of the bill. With this situation appellee filed the discussed “Motion,” which obviously was a completely new cause of action. There was not even a request to amend the original bill. Although the final decree is not clear, it appears to have been based on the motion filed that date and the October 4, 1975, deed set aside because of the failure of Bryant, appellee’s husband, to join in its execution. Even if appellant and a dozen lawyers had been present on the morning of August 28, 1979, appellant would have been entitled to meet this new cause of action in the form of a motion and time to prepare. We therefore hold the decree entered on that date and under the testimony in this record is completely void as it has nothing whatever to do with the original bill of complaint and answer.

We now reach the question as to whether or not the obvious reason for the Final Decree of August 28, 1979, (the failure of Bryant to execute the deed) rendered the Decree valid. Reviewing briefly, appel-lee’s husband died on December 5, 1970. Obviously, he died intestate, leaving appel-lee and six children, with each inheriting a one-seventh undivided interest in the property theretofore a homestead of Mr. Bre-land and appellee. Appellee was entitled to and obviously took advantage of the provisions of Section 91-1-23, Mississippi Code 1972 Annotated, which was in effect at that time and allowed the widow [appellee] to occupy and use the property during her widowhood. As heretofore discussed, appel-lee married on July 21, 1972. This action ended her right under Section 91-1-23 and subjected the entire property to be partited by any and all of the other joint owners. This Court has made this decision without reservation in Jefcoat v. Powell, 235 Miss. 291, 108 So.2d 868 (1959), and Medford v. Mathis, 176 Miss. 188, 168 So. 607 (1936).

The question then arises as to whether or not the widow in remaining in the “old” homestead and bringing in her new husband prohibited a transfer of her undivided interest without the signature of her husband pursuant to the provisions of Section 89-1-31 that was in effect at the time of the case now before us [Section 89-1-31 has now been repealed and its provisions joined with Section 89-1-29], This section provides that:

A conveyance, mortgage, deed of trust or other encumbrance of a homestead, where it is the property of the wife, shall not be valid or binding unless signed and acknowledged by the owner and husband, if he be living with his wife....

In addition to a hearing on the original bill of complaint and answer thereto, appellant is entitled to a hearing on the above discussed “Motion” and order thereon. We have heretofore seen that appellee in the hearing that was had indicated that appellant had taken her to Alabama to live with him and care for her and that during this time they went to Pascagoula for appellee to execute the deed. This appears to be contradictory to Bryant’s testimony that the two were living together in Perry County at the time. These facts and any others material are matters to be presented to the chancellor in another hearing. We, therefore, find it necessary to reverse and remand the cause on the grounds that the chancellor should have sustained the bill of complaint in the nature of a bill of review and also to have a hearing on the “Motion” regarding the absence of Bryant’s signature on the deed. We are sure that the attorneys and the chancellor shall see that the pleadings are properly rearranged for these purposes.

In order to facilitate a hearing on the questions involved, we refer the lower court and the attorneys to the following authorities and suggest their consideration, as well as others on the subject, to-wit: Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624 (1936); Clark v. Edwards, 180 Miss. 97, 177 So. 361 (1937); authorities under Homestead Key Number 84 of the Mississippi Digest and any other authorities that the attorneys in their necessary research are able to produce.

REVERSED AND REMANDED.

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


text:
    Gearl L. NAIL v. Patricia Lincoln NAIL.
    No. 52871.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    J. Ronald Parrish, Laurel, for appellant.
    Jerome L. Lohrmann, Jackson, for appel-lee.
   Appeal from Chancery Court., Hinds County; Joe G. Moss, Chancellor.

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

AFFIRMED.


text:
    Lewis L. DRAKEFORD v. HOOD CHARCOAL CO., A Division of Masonite Corp.
    No. 52854.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    Sherrye L. Shell, Laurel, for appellant.
    Robert M. Carpenter, Riddick & Carpenter, Jackson, for appellee.
   Appeal from Circuit Court, Clarke County; Henry Palmer, Judge.

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

AFFIRMED.


text:
    WARREN BROS. CO., et al. v. Dependents of Jessie J. GREEN, Dec’d.
    No. 52814.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    . Brad Sessums, Young, Scanlon & Ses-sums, Jackson, for appellant.
    Houston J. Patton, Page, Patton, Moyo & Young, Jackson, for appellee.
   Appeal from Circuit Court, Yazoo County; Dan M. Lee, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Jerry Ray NATIONS v. Mrs. Barbara A. NATIONS (Hill).
    No. 52812.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    Leon Mangum, Decatur, for appellant.
    Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellee.
   Appeal from Chancery Court, Neshoba County; John C. Love, Jr., Chancellor.

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

AFFIRMED.


text:
    CITY OF CORINTH v. Jessie L. VANDERFORD, et al.
    No. 52852.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    John C. Ross, Jr., Smith, Downs, Ross, Trapp & Coleman, W. C. Sweat, Jr., Corinth, for appellant.
    James H. Mathis, Corinth, for appellee.
   Appeal from Special Court of Eminent Domain, Alcorn County; Neal Biggers, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Thomas James PUGH v. STATE of Mississippi.
    No. 53032.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    Thomas James Pugh, pro se.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Joe 0. Sams, Sr., Judge.

Before WALKER, BROOM and LEE, JJ.

AFFIRMED.


text:
    Mary WASHINGTON v. The MAYOR & BOARD OF ALDERMEN OF the CITY OF VICKSBURG, MS.
    No. 52832.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    Paul Kelly Loyacono, Loyacono, Field & Price, Vicksburg, for appellant.
    C. E. Sorey, II, Ward, Martin, Terry & Way, Vicksburg, for appellee.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Roy Dexter ROSS v. STATE of Mississippi.
    No. 52823.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    Roy Dexter Ross, pro se.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED.


text:
    Robert E. TUBWELL v. STATE of Mississippi.
    No. 52843.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    Robert E. Tubwell, pro se.
    Bill Allain, Atty. Gen., P. Roger Googe, Jr., Asst. Atty. Gen., W. V. Westbrook, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


author: LEE, Justice, for the Court:

text:
    W. Lynn JORDAN, d/b/a Jordan Realty Company v. FIRST NATIONAL BANK OF JACKSON.
    No. 52786.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    Rehearing Denied Sept. 16, 1981.

      Pat M. Barrett, Jr., Barrett, Barrett & Barrett, Lexington, W. 0. Dillard, Jackson, for appellant.
    Thomas R. Crews, Mary Ann Parks, Thompson, Alexander & Crews, Jim L. Carroll, Watkins & Eager, Jackson, for appel-lee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice, for the Court:

W. Lynn Jordan filed suit in the Circuit Court of the First Judicial District of Hinds County, Honorable Charles T. Barber, presiding, against West Center Apartments, Ltd. and First National Bank of Jackson (FNB) to recover a real estate commission in the sum of $210,000 for the sale of an apartment complex, the Windsor Park Apartments. Prior to trial, Jordan nonsuit-ed as to West Center Apartments, Ltd. and the trial proceeded against First National Bank of Jackson. At the conclusion of Jordan’s case in chief, FNB moved for a directed verdict in its favor, which motion was granted. Jordan has appealed to this Court and we reverse.

The appellant has assigned two errors in the trial below but the only assignment necessary for consideration is whether or not the lower court erred in sustaining the motion of FNB for a directed verdict.

The evidence favorable to the appellant reflects that on and prior to April 19, 1978, the Windsor Park Apartments, an apartment complex located in Jackson, Mississippi, was owned by West Center Apartments, Ltd., a limited partnership composed of Barnmiss Properties, Inc., a corporation, and National Investment Company, Inc., a corporation, the latter being the managing general partner of the limited partnership. The president of National Investment Company, Inc. was Wayne L. Nix, who also was employed by FNB as a senior vice-president in charge of the bank’s legal department. FNB was mortgagee in a deed of trust on the apartment property in the approximate amount of $4,400,000. Mr. Nix was trustee in the mortgage.

Mr. V. O. Russell, salesman for appellant, learned that the apartment property was for sale and on April 19,1978, appellant and Russell went to the office of Mr. Nix to discuss sale of the property. Mr. Nix told appellant that he had the authority to sell the property without approval of the limited partnership and that the bank wanted to negotiate the sale. Appellant was given a listing with a 5% commission based upon a selling price of $4,200,000, although the listing was not exclusive. On the following day, appellant wrote Mr. Nix a letter requesting that he register appellant’s client, Burton Goldberg, as a prospective purchaser. Mr. Nix previously had told appellant that his interest would be protected if appellant did get him a buyer. Appellant also requested that Mr. Nix register Limehouse Properties, Inc. of Charleston, South Carolina, as a prospective buyer. Appellant showed the property both to Burton Goldberg and Limehouse Properties, Inc. Prior to October 16, 1978, Mr. Nix sustained a serious heart attack and his assistant, Harris Collier, succeeded to Nix’s position. Appellant contacted Collier, informed him that he and Mr. Nix had agreed upon a 5% commission and that he was attempting to find a purchaser for the apartment property. Collier said that he was agreeable to the 5% commission arrangement.

Another realty group became interested in the sale of Windsor Park Apartments and made the acquaintance of Burton Goldberg. After a series of negotiations, the sale of said property was effected by that group to Burton Goldberg for the sum of $4,200,000. None of the parties informed appellant concerning what was going on, but Harris Collier did tell the chairman of the board of FNB that appellant was expecting a commission from the sale of the property. As a result, FNB obtained an indemnity agreement from the realty group wherein FNB would be indemnified against a claim for commission by appellant.

In ruling on the motion for directed verdict, the lower court used the following language:

BY THE COURT: As to the point of procuring agent, I believe that’s a question for the jury, so I’ll overrule your motion on the point.
As to the portion of the motion directed to agency, prior to the Court beginning trial of this cause, it hurriedly read the pleadings and the matter of agency has stuck in the Court’s mind since reading the pleadings; that Mr. Nix was undoubtedly a double agent. He had two principals. This case so far is completely void as to which hat he was wearing, so to speak — who he was acting for at the time the so-called contract was made between them.
The Court has settled in its own mind that in order for the defendant First National Bank of Jackson to be liable in this case at all, Mr. Nix would have to have been acting at the time of that particular proposed contract for and on behalf of the First National Bank and there is nothing in the record to indicate to the Court who he was acting for.
Therefore, the Court will have to sustain the motion.

The declaration charged that “at all times material hereto, Nix was the agent and sub-agent of the defendant owner and the agent of the defendant bank (FNB), acting within the scope of his apparent and real authority. Said bank and owner both knew of and ratified the dual agency of Mr. Nix. At all times material hereto, the bank was the agent of the owner, acting through Nix and one Harris Collier, within the scope of its authority. Nix and the said Harris Collier, from April through October 1978 led plaintiff to believe they were acting solely as agents for the bank”.

In its separate answer, FNB admitted the above-mentioned allegations in the following language: This defendant admits that at all times, Wayne L. Nix was an agent of this defendant and was also an agent of the other defendant in this action, and was acting within the scope of his separate authorities as agent for each of the two' defendants. This defendant admits that at all material times Harris Collier was an agent of this defendant and was acting within the scope of his authority as such agent”.

Prior to resting the case, appellant’s attorney read the following stipulation to the jury:

BY MR. BARRETT: May it please the Court and members of the jury, it is stipulated ánd agreed by and between the parties that First National Bank of Jackson admits that on April 19, 1978, Wayne L. Nix was a Senior Vice-President of this defendant, was the attorney in charge of this defendant’s Legal Department, and also was the President of National Investment Company, Inc., the managing general partner of the other defendant in this action.
This defendant admits that at all material times, Wayne L. Nix was an agent of this defendant and also was agent of the other defendant in this action and was acting in the scope of his separate authority as agent for each of the two defendants.
This defendant admits that at all material times, Harris Collier was an agent of this defendant and was acting within the scope of his authority as such agent.

In Georgia-Pacific Corporation v. Blakeney, 353 So.2d 769 (Miss.1978), quoting from Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975), we said:

The rule, in determining whether a motion for directed verdict should be granted, requires the trial judge to consider the evidence on behalf of the party against whom a directed verdict is requested, along with all reasonable inferences, in the light most favorable to said party, disregard any evidence of the other party in conflict therewith, and, if the evidence and reasonable inferences to be drawn therefrom would support a verdict for such party, the motion for directed verdict should be denied... .
(353 So.2d at 772)

Applying the principle enunciated above to the record in the present case, we are of the opinion that the motion for directed verdict should have been denied. We again call to the attention of the trial courts our comments in Claiborne v. Greer, 354 So.2d 1109 (Miss.1978):

Here, the case was tried in its entirety, with nothing remaining except instructions, arguments of counsel and deliberation of the jury. We remind trial judges that, after cases have been heard, where there are close questions of fact and law, requests for directed verdicts and peremptory instructions should be denied. Often times juries return verdicts which agree with the thinking of the trial judge. After verdict, if the trial judge is of the opinion that he should have granted a motion for directed verdict or request for peremptory instruction, he may then sustain a motion for judgment n. o. v. In the event of an appeal to this Court, the matter probably could be resolved finally without the necessity and expense of another trial.
(354 So.2d at 1111)

The appellee argues that a realty commission is the liability only of the owner of property. However, in C. Buck Bush Realty Co. v. Whetstone, 266 So.2d 135 (Miss.1972), this Court said:

As a general rule a person employing a broker to find a purchaser for property is liable to the broker for his services regardless of his interest in the property or the fact that he is not the owner thereof.
(266 So.2d at 138)

For the reasons stated, the judgment of the lower court is reversed and the cause is remanded for a new trial on all issues.

REVERSED AND REMANDED.

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


text:
    Thad RICHARDSON, Jr., Alias Johnny Otis Richardson, Alias Daniel Richardson, Alias Ernest Ray Dixter, Alias Earnest Ray Sixter, v. STATE of Mississippi.
    No. 52766.
    Supreme Court of Mississippi.
    Aug. 26, 1981.

      Stella Terrell, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P.J., and WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Thad Richardson, Jr., was indicted, tried and convicted in the Circuit Court of Pike County, Honorable Joe N. Pigott, presiding, for burglary of a dwelling house and was sentenced to serve a term of eight years in the Mississippi State Penitentiary. He has appealed and assigns five errors in the trial below.

The evidence for the state reflects that on August 19, 1978, Higdon Hudson and John Hudson, his son, drove up to Higdon Hudson’s home in their pickup truck. They noticed a Buick automobile speeding away from behind the house, the trunk lid was up and Mr. Hudson’s television set was in the trunk. John Hudson jumped into his own car, which was parked near the house, and gave pursuit. Higdon Hudson went into the house and saw that the back door had been broken open and discovered that his television set, three guns, a chain saw and two jewelry boxes had been stolen. He got a pistol from the bedroom and left the house in the truck to find his son.

Approximately one mile from the Hudson residence Higdon Hudson found the two cars. Inside the Buick car (stuck in a ditch) was the property that had been taken from Hudson’s home. Higdon Hudson saw his son nearby and he was holding the appellant. When Hudson approached the appellant, he pleaded with Hudson to allow him to carry the stolen property back to the Hudson home and begged him not to have him arrested and prosecuted. John Hudson asked his father to give him the pistol, being afraid that the elder Hudson might discharge it at appellant. The appellant then ran off into the woods and John Hudson fired the pistol into the ground but appellant continued to run. The Hudsons returned home, notified the police of the incident and gave them a description of the appellant.

Subsequent to the day of the burglary, the brother of appellant went to the officers, reported that his 1974 Buick automobile, which was the one involved in the burglary, had been stolen and that his brother, the appellant, was the person who had taken it. Appellant was visiting in the home of his mother at the time of the incident, and he left the community and returned to New Orleans where he had been living. He owned, and was driving, a white Dodge Dart automobile. At trial, John Hudson and Higdon Hudson positively identified the appellant as the person who had driven the Buick automobile away from the Hudson home and as the person whom John Hudson caught and held at the place where the automobile was stuck and as the person who then fled into the woods.

I.

Four assignments of error may be consolidated into one question, viz, whether the lower court erred in sustaining appellant’s motion to act as co-counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and whether or not from the totality of the proceedings in the lower court the appellant received a fair trial.

After appellant’s indictment and arrest, he made it known to the court that he was indigent and the court appointed a competent attorney to represent him. It developed, however, that appellant was not happy or satisfied with his appointed counsel and filed a pro se motion for the court to permit him to act as co-counsel in his own defense, which the court granted. The appellant still was not satisfied with the situation and insisted that the court discharge his appointed attorney. That attorney also filed a motion to be permitted to withdraw as counsel in view of such developments. The court did not permit counsel’s withdrawal but required him to sit at the counsel table, to be present and available for any advice or assistance to appellant. Also, at trial, another attorney was present at the counsel table at the request of the first-appointed attorney and he and the other attorney were present during the trial, made suggestions, and offers of advice and assistance, drew instructions, and participated to some extent in the trial of the case. The appellant, throughout the trial, although stating that he was not a lawyer and was not qualified to represent himself, stubbornly and vehemently refused the help and assistance of court-appointed counsel, saying in open court on twenty different occasions that he did not want a “state-appointed attorney.”

The appellant cross-examined all witnesses for the state. The examinations by him of those witnesses were repetitious and argumentative. His conduct in the trial indicated that he had previous experience in pro se representation and that he had some knowledge of trial procedure.

In Matthews v. State, 394 So.2d 304 (Miss. 1981), the Court said:

Every accused has a constitutional right to be represented by an attorney. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). A waiver of that right may occur at any time, before or during the trial, but it must be made with a full understanding of its disadvantages and consequences. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
(394 So.2d at 308-309)

The United States Supreme Court stated the principle in Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966):

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.
(384 U.S. at 150, 86 S.Ct. at 1321, 16 L.Ed.2d at 130)

On the other hand, an accused has a constitutional right to represent himself and to present his own case pro se without an attorney. In Gray v. State, 351 So.2d 1342 (Miss.1977), this Court stated the following:

Mississippi Constitution Article 3, section 26 (1890) provides in part:
In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, ...
The refusal to permit defendant to argue his case is in direct violation of the above constitutional provisions and requires reversal.
(351 So.2d at 1345)
We also said in Matthews v. State, supra:
An accused could place the trial judge in a difficult situation by insisting on a pro se trial, and, upon conviction, claim that he/she did not have the benefit of counsel and did not knowingly waive counsel. Again, if the court refused to permit an accused to represent himself/herself, and required him/her to have counsel present the case, the accused could contend that he was denied his/her constitutional right in not being permitted to present his/her defense pro se. In such delicate situations, the question of counsel waiver must be determined on the facts of each case. In the case sub judice, the attorneys appointed for the appellants were required to remain in the courtroom within a few feet of the appellants during the four days of trial and were present, ready, willing and able to advise, counsel and assist the appellants. In fact, Matthews did call upon her appointed attorney at times for advice. We are of the opinion that the trial judge, who observed and talked with Matthews prior to trial and for four days during the trial, was in the best position to know whether or not she executed a knowledgeable waiver of counsel and was mentally competent to do so, and that he did not err in overruling the motion for a new trial.
On Jacob’s appeal, the sole question presented is that he was denied the benefit of counsel and that he did not knowingly waive counsel. The record is replete to the contrary and is uncontradict-ed that he did knowingly waive counsel. (394 So.2d at 311)

The record reflects that appellant, throughout the trial was stubborn, insolent, uncooperative and trying toward the trial judge. Suffice it to say, the trial judge was patient, tolerant, and fair toward the appellant during the entire trial and he took great precaution to insure the constitutional rights of the appellant and to see that he received a fair trial. There is no merit in the first four contentions of the appellant presenting the question that his constitutional rights were violated when the court permitted him to act as co-counsel and that he was denied a fair trial throughout the case.

II.

Did the lower court err in refusing appellant’s requested jury instruction No. 11?

Appellant requested and was refused instruction D-ll which follows:

The court instructs the jury that the fact that the defendant does not testify in this cause is not to be considered unfavorably to him by the jury in the trial of the case.

The trial judge refused the instruction with the following statement: “This is a comment on the failure of the defendant to testify.”

The appellant did not testify in the case, although he asked all questions of the state’s witnesses and examined all witnesses called by him. Mississippi Code Annotated section 13-1-9 (1972) states the following:

The accused shall be a competent witness for himself in any prosecution for a crime against him. The failure of the accused, in any case, to testify shall not however operate to his prejudice or be commented on by counsel.

In Wood v. State, 221 Miss. 901, 74 So.2d 851 (1954), Wood did not testify and the court refused the following instruction:

The court instructs the jury for the defendant that they as jurors have no right under the law to draw any unfavorable inference against the defendant because he did not testify in this case.
(221 Miss, at 907, 74 So.2d at 853)

This Court held that the refusal of the instruction was error and that it should have been given. However, the error was held to be harmless and the case was not reversed. The Court cited Funches v. State, 125 Miss. 140, 87 So. 487 (1921), where it was error to refuse a similar instruction requested by the defendant. That case was reversed because of two other prejudicial errors. The Wood Court also cited Spencer v. State, 157 Miss. 624, 128 So. 770 (1930), where the instruction was refused and the Spencer Court stated that the error was harmless because the defendant’s guilt was manifest.

In Rose v. State, 222 Miss. 699, 76 So.2d 835 (1955), the trial court’s refusal to grant the instruction was error but the facts were similar to the Wood case and the error was called harmless. In Haynes v. State, 27 So. 601 (Miss. 1900), refusal to grant the instruction was held error.

The United States Supreme Court spoke to the question in March 1981 in the case of Carter v. Kentucky, - U.S. -, 101 S.Ct. 1112, 67 L.Ed.2d 241. The Court said:

Just as adverse comment on a defendant’s silence “cuts down on the privilege by making its assertion costly,” Griffin, 380 U.S. [609] at 614, 85 S.Ct. [1229] at 1232 [14 L.Ed.2d 106], the failure to limit the jurors’ speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of the privilege. Accordingly, we hold that a state trial judge has the constitutional obligation, upon proper request to minimize the danger that the jury will give evidentiary weight to a defendant’s failure to testify.
(-U.S. at-, 101 S.Ct. at 1121-22, 67 L.Ed.2d at 253)
******
The only state interest advanced by Kentucky in refusing a request for such a jury instruction is protection of the defendant: “the requested ‘no inference’ instruction ... would have been direct comment by the court and would have emphasized the fact that the accused had not testified in his own behalf.” Green v. Commonwealth, Ky., 488 S.W.2d 339-341. This purported justification was specifically rejected in the Lakeside [435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319] case, here the Court noted that “[i]t would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.” 435 U.S., at 339, 98 S.Ct., at 1094. (- U.S. at -, 101 S.Ct. at 1120-21, 67 L.Ed.2d at 254)

Thus, the U.S. Supreme Court has held that denial of the instruction violates the constitutional rights of a defendant. Kentucky argued that evidence of the petitioner’s guilt was overwhelming and could not be explained and any constitutional error committed by the state courts was harmless, citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). However, the Carter Court said: “While it is arguable that a refusal to give an instruction similar to the one that was requested here can never be harmless, we decline to reach the issue because it was not presented to or considered by the Supreme Court of Kentucky. - U.S. at -, 101 S.Ct. at 1121, 67 L.Ed.2d at 253-254.

Refusal to grant the instruction in criminal cases constitutes error. However, in the case sub judice, the appellant, in the presence of the jury, while cross-examining witnesses, four times denied that he committed the burglary. In the presence of the jury, four times he stated that he was somewhere else than the Hudson home when the burglary was committed. On nine different occasions, in the presence of the jury, he stated that the two principal witnesses for the state (Hudsons) were lying. Appellant contended throughout his examinations of the witnesses that he was in New Orleans, Louisiana, at the time the crime was committed and that the person who probably committed the crime was his brother. Although not sworn, he placed before the jury by his own words and statements his defense of alibi and his denial that he was implicated in the crime.

The identification of appellant as the burglar and his guilt of the crime were proved beyond reasonable doubt by overwhelming evidence. Therefore, under the facts of this case, we are of the opinion that refusal to grant the requested instruction D-ll constitutes harmless error and that the judgment of the lower court should be affirmed. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Austin v. State, 384 So.2d 600 (Miss.1980).

AFFIRMED.

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


text:
    The LOUISVILLE AND NASHVILLE RAILROAD COMPANY, et al. v. J. C. ELLIS, Jr.
    No. 52728.
    Supreme Court of Mississippi.
    Aug. 26, 1981.
    George E. Morse, White & Morse, Alben N. Hopkins, James K. Wetzel, Hopkins & Logan, Gulfport, for appellants.
    C. Randall Jones, Jr., Pass Christian, Gail A. Crowell, Harry R. Allen, Bryan, Nelson, Allen & Schroeder, Gulfport, for appellees.

      Before SMITH, P. J., and LEE and BOWLING, JJ.
   SMITH, Presiding Justice, for the Court:

This case involves a suit by the city of Pass Christian, in which one J. C. Ellis Jr., a real estate developer who had acquired land north of the tracks of L & N Railroad Company, joins to enforce the city’s rights under an easement granted to it by the railroad in 1957 for the purpose of extending Elva Drive, a city street, across the L & N right-of-way. Elva Drive, at the time of the grant, (and until the present litigation was begun), was a residential street south of the railroad tracks, “dead-ending” at its north end with the railroad right-of-way. Also parties, protesting the extension of the city street across the tracks, were E. B. McDonald and other homeowners, who own property south of the tracks which abuts on the dead end street, whose position is that their property, on what had been a quiet residential street, would be very materially damaged by extending that street northward across the railroad tracks.

The case was tried and proof showed that in 1957 L & N had granted the City of Pass Christian an easement for extending Elva Drive northward across its right-of-way, the easement being subject to a number of conditions stated in the instrument, the validity and enforceability of which do not appear to be challenged. The right of the grantor, L & N Railroad Company, to require that they be fulfilled is not here involved and shall not be considered as having been precluded or diminished by anything in the decision in this case, unless it is specifically so stated.

The opening of the crossing and the extension of Elva Drive across the L & N right-of-way was contested by L & N which appeals from the chancellor’s finding that the grant of the easement for the right-of-way to the City of Pass Christian is valid, subsisting and enforceable. Ellis and the City of Pass Christian cross-appeal, Ellis as to the chancellor’s refusal to allow him certain damages claimed by him and the city from a denial of an award of damages to it.

At the point where it is proposed to extend the street across the right-of-way there are two sets of railroad tracks. One, the main line, the other used for “sidetracking” a train so that another train, travelling in an opposite direction may pass. The undisputed evidence is that, if the street is constructed across these tracks, an extremely hazardous condition, highly dangerous to the public using the crossing, will be created, not only because of the double tracks, but because the vision of those using the crossing will be obscured by trains necessarily standing on the side track awaiting passage of trains along the main line. Moreover, it will be necessary that considerable and continuing expense and loss of time be incurred by L & N, to “cut” such trains so sidetracked in order that street traffic may pass between the two divided sections.

It was shown that Ellis is an individual engaged in real estate development who had acquired a tract of land north of the railroad which he has subdivided into lots for sale, and, in that connection, he had filed a plat of the subdivision upon which Elva Drive is shown as extending northward across the L & N right-of-way. Ellis desires to have the crossing opened as an additional route of access to his property. It is admitted that the proposed crossing is in no way a way of necessity for the Ellis property.

It appears, although there is some contrary testimony, that it will probably be necessary to raise the grade of Elva Drive as it passes between the residences situated on property now abutting the street immediately south of the railroad and belonging to the individuals who are parties to this suit and who are contesting the implementation of the easement grant by the extension of the street.

One of the conditions expressly stated in the grant of the easement is as follows:

Grantee (City of Pass Christian), its successors or assigns shall assume the entire expense of paving across the track or tracks of the Grantor that may be constructed thereon and shall assume the entire cost of any grade separation or any flasher device or other crossing protection, except as at present otherwise required by statute. [Emphasis added].

The validity and binding character of this provision is conceded by the City of Pass Christian. There can be no question from the testimony in this case that the extension of the street across the double tracks will create for those traversing the crossing a hazard of an extremely dangerous nature. The testimony of experts was to the effect that a measure of safety could be provided only by the use of flashing lights and automatic crossing arm gates. The obligation thus assumed by the City of Pass Christian as a condition to the exercise of the easement, comports with the public duty resting upon the municipality to protect the public using its streets and neither to create nor maintain a situation calculated to expose members of the public to danger. We consider this (as did the chancellor) an enforceable condition precedent which rests upon the city, one to be fully complied with prior to the opening of the street across the railroad to traffic. This is not contested by the City of Pass Christian. The chancellor, however, (although evidence was submitted touching upon the subject), pretermitted the making of a finding as to the type of signals and guards which will be necessary under the circumstances to afford maximum protection. The case, as to this, is remanded to the chancellor, who shall, prior to the opening of the street across the tracks to traffic, conduct a hearing and hear testimony of such expert witnesses as the parties may wish to offer, and other relevant and competent evidence, as to what devices are necessary and appropriate for the protection of those using the extension of the public street across the tracks, and shall order and require the City of Pass Christian to provide, install and pay for those of such type and character as he shall find will provide the utmost protection to the public, prior to the opening of the crossing to traffic. Until such devices as the chancellor may find necessary and appropriate shall have been actually installed, said street or crossing shall not be opened to traffic by the City of Pass Christian.

The instrument granting the easement also provides:

The conveyance of the easement hereby made is upon the express condition subsequent, that in the event of a vacation or non-use of said street or any portion thereof, or if said premises or any portion thereof shall be at any future time abandoned as a public street, or cease to be used as a public street or shall be used by the Grantee for any other purpose, said easement hereby conveyed as to the portion so abandoned or vacated, or any interest granted by this deed, shall thereupon cease and determine, and all rights hereby conveyed shall revert to the Grantor, its successors or assigns.

The chancellor held that there had been no abandonment of the right to an easement granted by L & N across its tracks, and upheld the validity of the grant and we affirm his action in so doing, holding that the grant is valid and subsisting, but subject to all of the terms and conditions upon the basis of which it was granted. We are unable to say, upon the record, that he was manifestly wrong in so doing.

The only other matter requiring comment is the allowance to the individual complainant Ellis of $4,933.75 as “damages.”

The question of this award to Ellis is not specifically assigned as error by L & N but Ellis in his complaint on cross-appeal, argues that he is entitled to a recovery for damages to his land north of the tracks. In passing upon the question raised by Ellis and examining the evidence bearing upon it, we have come to the conclusion that evidence of damage to the Ellis property north of the railroad as having been caused or contributed to by L & N is too remote and speculative to support an award of further damages to Ellis. Moreover, Ellis is not a party to the easement, and had no standing to require the city to extend its street. While the city sought to enforce the easement and, on cross-appeal, contends that it was entitled to damages against L & N, it does not appear to have been entitled to any and the chancellor so found, we think correctly.

The rights, if any they have, against the City of Pass Christian of McDonald and of the other individuals who are parties to this litigation and whose property abuts upon Elva Drive, the street now dead ending at the railroad, when, as and if the crossing is actually constructed, and opened, shall not be considered as having been affected or precluded by this decision, except incidentally insofar as the legal right of the City of Pass Christian to extend the street northward across the L & N right-of-way, has been established.

Therefore, we affirm the decree of the chancellor upholding the validity and enforceability of the 1957 grant to the City of Pass Christian by L & N of an easement for extending Elva Drive across its right-of-way, but the city’s right to do so shall be exercised only upon the city’s compliance with the conditions and terms expressed in the grant.

We affirm the chancellor’s decree holding that adequate crossing devices to afford the utmost protection to the public, in the event the street shall be extended across the tracks, shall be provided and paid for by the City of Pass Christian, and shall be installed as a condition precedent to the opening of such crossing to the public. For the purpose of determining the type and kind of warning devices, safeguards and lights which shall be so provided, the case is remanded to the chancellor for a hearing thereon, at which the parties may offer testimony of experts and such other competent and relevant evidence on the subject as they may desire.

AFFIRMED ON DIRECT APPEAL BY l & n, McDonald, et al., affirmed ON CROSS-APPEAL BY ELLIS AND THE CITY OF PASS CHRISTIAN, AND REMANDED.

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

ROBERTSON, P. J., takes no part.