author: LOTTINGER, Judge. PONDER, Judge,

text:
    A. F. BLAIR CO., INC. v. Robert C. MASON, Robert C. Mason General Contractor and M & H Engineers and Construction Co. Millard BLANCHARD, d/b/a Blanchard Electrical Service v. Robert C. MASON, General Contractor and Hallmark Insurance Company.
    Nos. 14338, 14339.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Dec. 10, 1981.

      John I. Hulse, IV, New Orleans, for plaintiff and appellee A. F. Blair Co., Inc.
    Richard Mary, Baton Rouge, for defendant and appellant Hallmark Ins. Co.
    Kenneth Watkins and Philip McMahon, Houma, for defendant and appellant Hou-ma Aviation Services, Inc.
    William C. Kaufman, III, Baton Rouge, and Edward James Gaidry, Houma, for defendant and appellee Thibodeaux Associates, Inc.
    Daniel J. Walker, Houma, for plaintiff and appellee Millard Blanchard.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

These consolidated cases concern the right of a judgment creditor to garnish funds due and owing to the judgment debt- or under a construction contract. The plaintiff, A. F. Blair Company, Inc. (Blair), seeks to enforce a judgment against the defendants, Robert C. Mason, Robert C. Mason General Contractor and M & H Engineers and Construction Company (Mason), by garnishing funds due and owing to Mason under a construction contract with Hou-ma Aviation Services, Inc. (Houma Aviation). Mason eventually defaulted on the job with Houma Aviation. Mason’s surety, Hallmark Insurance Company (Hallmark), was called in to complete the work and pay lien claimants.

Hallmark and Blair are the principal litigants before this court, the dispute being over which one of them is entitled to the funds owed to Mason by Houma Aviation. The trial court ruled that Blair was entitled to the funds, and Hallmark appealed. The primary issue is whether funds due and owing by the owner under a construction contract are subject to seizure and, if so, whether the seizure was properly effected.

THE FACTS

On July 23, 1976, Houma Aviation entered into a contract with Mason for construction of a $149,036.00 hangar and office facility at the Houma-Terrebonne Airport. The contract was a standard form agreement between the owner and contractor prepared by the project architects, Thibo-deaux and Associates, Inc. (Thibodeaux). Mason secured performance and payment bonds from Hallmark and, in conjunction therewith, assigned and transferred its rights to the proceeds of the contract to the surety.

In an unrelated matter prior to this time, Blair had become a creditor of Mason for the sum of $37,840.41. Blair reduced the debt to judgment on October 26, 1976, in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. On December 8, 1976, Blair filed suit in the Thirty-Second Judicial District Court for the Parish of Terrebonne to make the Baton Rouge judgment executory. On the same date Blair caused a writ of fieri facias in connection with garnishment to be served on Mason and Houma Aviation, and further caused garnishment interrogatories to be served on Houma Aviation, the garnishee.

In answer to the first set of interrogatories, Houma Aviation generally denied having any funds in its possession belonging to Mason. However, Houma Aviation admitted that Mason was under contract with it by virtue of the July 23, 1976 contract. Blair thereafter filed a motion to traverse the answers to the interrogatories and to forfeit funds, contending that the answers were “both contradictory and evasive” and that Houma Aviation was holding funds due to Mason under the contract. Blair concomitantly filed supplemental garnishment interrogatories directed to Houma Aviation to ferret out further information about the Mason contract. The pertinent supplemental interrogatory asked:

“Please state at the present time what if any retainage is being withheld by Hou-ma Aviation Services, Inc. with regard to the contract between Robert C. Mason, General Contractor and Houma Aviation Services, Inc.”

To this question, Houma Aviation replied:

“At the outset of the contract a $30,-940.00 change order deduction was issued, reducing the total contract to $149,036.00. Considering the above payments [which were mentioned in a previous answer], Houma Aviation Services, Inc. retains a balance of $93,994.71 less penalties accrued in favor of Houma Aviation Services, Inc. under the terms of the contract.”

About two weeks after the supplemental garnishment interrogatories were filed, Hallmark filed a petition of intervention claiming that Mason had assigned all the sums due under the construction contract to the surety and that the assignment predated service of the garnishment process by Blair. Hallmark claimed that various liens had also been filed against the job and questioned whether the remaining portion of the contract price would be sufficient to pay the claims of materialmen, subcontractors and laborers having valid liens against the property. Hallmark prayed for a declaratory judgment decreeing that no funds were due to the contractor and therefore no funds were subject to Blair’s garnishment writ. Hallmark further asserted its claim for sums due under the contract by virtue of the assignment from Mason.

Hallmark later filed a supplemental and amending petition of intervention claiming that Houma Aviation and the architects had negligently caused certificates of payment to be issued, and payments to be made, under the construction contract when both of them knew that the contract conditions had not been fulfilled. Hallmark sought $92,401.88 from Thibodeaux as the amounts Hallmark claimed were unpaid to subcontractors and materialmen. Hallmark also sought judgment for the same amount from Houma Aviation because Hallmark had paid that amount of money to lien claimants. As Mason’s assignee, Hallmark made additional demands for the entire contract sum against Houma Aviation because Hou-ma Aviation had occupied the project. Further, Hallmark sought judgment against Mason in the amount of $111,847.89 to cover the costs, expenses and attorney fees Hallmark expended to complete the project. Finally, Hallmark contended Blair’s garnishment was ineffective because there were no funds payable to Mason under the contract at the time of the service of the garnishment interrogatories because Mason was in default under the contract. Hallmark sought damages for wrongful seizure.

The trial court held a hearing on Blair’s motion to traverse on May 6, 1977. At the hearing, project architect Eugene Thibo-deaux testified that on December 10,1976— two days after the filing of Blair’s garnishment interrogatories — an Application for Payment No. 5 in the amount of $51,003.22 was submitted by Mason for work done during November and early December. Three days later, on December 13,1976, the project architect approved Certificate of Payment No. 5 in the amount of $44,593.90. This $44,593.90 figure is the amount presently sought to be garnished by Blair. After hearing this evidence, the trial court rendered judgment referring Blair’s motion for forfeiture of funds to trial of the merits and dismissing Blair’s motion to traverse the garnishment interrogatories. In its written judgment, the court based its decision on “answers filed and ... stipulation of counsel and return on subpoenas duces tecum.” The court found that the garnishment interrogatories were satisfactorily answered.

At the later trial on the merits, the trial court held that Blair was entitled to seizure of the $44,593.90 contract sum due and owing to Mason as evidenced by the application and certificate of payment issued on December 10 and 13, 1976. The court dismissed all of Hallmark’s claims.

SPECIFICATIONS OF ERROR

To the trial court’s ruling, Hallmark Insurance Company listed nine specifications of error, but these can be condensed to three:

(1) Hallmark claims the trial court erred in allowing any evidence contrary to the facts established by the answers to garnishment interrogatories filed by Houma Aviation Services, Inc. Hallmark contends that since the motion to traverse was dismissed and the motion for forfeiture of funds was referred to the merits, Blair is bound by the answers to the garnishment interrogatories.

(2) Hallmark contends the trial court erred in finding that as of December 8, 1976, contract funds were unconditionally due and owing to Mason under the Houma Aviation contract in the amount of $44,-593.90. More specifically, Hallmark contends that the contract provision requiring the contractor to deliver the job free of all liens and in accordance with the plans and specifications places a contingency or condition upon sums due under the contract. Therefore, Hallmark Claims, progress payments under the contract are not subject to garnishment by a third party creditor because such sums are not unconditionally due and owing.

(3)Hallmark claims that in the event Blair’s seizure is effective, the trial court erred in refusing to allow Hallmark’s third party claim against Thibodeaux.

GARNISHMENT PROCEDURE

Hallmark contends that where garnishment interrogatories have been traversed and where the motion to traverse has been dismissed, the liability of the garnishee must be tested solely by reason of the answers. Hallmark further asserts that Houma Aviation’s answers to the Blair interrogatories denied that any sums were due and owing to Mason.

Although Houma Aviation’s answers were somewhat unclear, we find that those answers do not unequivocally and unconditionally deny indebtedness to the judgment debtor. La.C.C.P. art. 2414; Dunckelman Distributing Company, Inc. v. Hyde, 334 So.2d 236 (La.App. 2nd Cir. 1976), writ refused, 338 So.2d 294 (La.1976). Houma Aviation admitted in the first set of answers that Mason was under contract with it. It admitted further in the second set of answers that certain sums were still being retained by Houma Aviation. These answers are not an unequivocal and unconditional denial of indebtedness to the debtor. Additionally, at the hearing on the contradictory motion to traverse the project architect admitted that at the time of the service of the garnishment interrogatories, Houma Aviation owed Mason $44,593.90 for work performed over the previous month. Under La.C.C.P. art. 2415, the architect’s testimony at the hearing resulted in an expansion of the written answers of the garnishee.

In dismissing the motion to traverse, the trial court found that the garnishee had satisfactorily answered the interrogatories. It is obvious from the record and from the written judgment itself that the trial court found a valid debt was due and owing from Houma Aviation to Mason. Having obtained answers to interrogatories which admitted that a debt was due and owing, Blair was not precluded from adducing further evidence at the trial on the merits to further refine those answers.

SEIZURE OF PROGRESS PAYMENTS

Hallmark contends that since payments to the contractor were predicated upon completion of the work according to the plans and specifications and free from all liens for material and labor, the progress payments were not unconditionally due and owing. Hallmark also contends that service of garnishment process on December 8, 1976, was ineffective to seize a progress payment that was not applied for until December 10, 1976 and not approved by the architect until December 13, 1976.

At the time of service of the garnishment process, no laborer’s or materialmen’s liens had been filed against the property, nor had Mason’s assignment to Hallmark of all sums due under the contract been communicated to any of the other parties in this proceeding. Mason was not in default. The contract between Houma Aviation and Mason provided that progress payments were to be made on a monthly basis for work done over the previous month. The contract also provided that applications for payment by the contractor could cover work done and materials acquired up to two days prior to the application for payment. Blair’s garnishment process was served two days prior to Mason’s application for payment. The application for payment, along with the architect’s certificate of payment, showed conclusively that Houma Aviation owed Mason $44,593.90 at the time Blair garnished the payment. This amount was unconditionally due and owing.

The fact that the architect had the option under the contract to withhold a certificate of payment does not take away from the fact that, at the time of seizure, a sum of $44,593.90 was due and owing by the owner to the contractor; neither does the fact that the architect later nullified the certificate for payment. Under the facts and circumstances of this case, Blair properly and timely seized a debt that was unconditionally due and owing to Mason. Subsequent events cannot affect rights Blair previously acquired. The case at bar is closely analogous to Morehouse Lumber & Building Material Co., Inc. v. Jacob & Walker, 18 La.App. 536, 139 So. 713 (2nd Cir. 1932); on rehearing, 144 So. 190 (La.App. 2nd Cir. 1932); affirmed 177 La. 76, 147 So. 504 (La.1933). Morehouse, too, involved the right of a judgment creditor of a building contractor to garnish funds in the hands of the owner but due to the contractor on the basis of estimates made from time to time as the work progressed. The contractor/judgment debtor in that case claimed the money due to it under the contract was subject to a contingency in that all labor and material costs were to be paid from the amounts paid by the owner. The court in Morehouse noted that the owner was indebted only to the contractor and not to the laborers or furnishers of materials. The owner discharged his legal obligation to laborers and materialmen by requiring the contractor to execute a bond guaranteeing payment of any laborers’ or materialmen’s claims. The court also noted that laborers and materialmen have a lien only upon the land and improvements and not upon the amounts due under the contract. In holding that the seizure was proper and that the payments due from the owner to the contractor were not based on a contingency, the court stated:

“The seizing creditor is not seeking to garnishee some future uncertain contingent sum of money. It seeks to seize under a garnishment a certain definite sum that has been determined to be due.... This amount was not contingent upon anything.”
139 So. at 717.

In the case at bar, Houma Aviation was indebted only to Mason and not to any of the laborers or materialmen on the job. Houma Aviation discharged its legal obligation to laborers and materialmen by requiring Mason to execute a bond guaranteeing payment of laborers’ and materialmen’s claims. The payment seized by Blair, under the terms of the contract and under the facts of this case, was unconditionally due and owing to Mason. “This amount was not contingent upon anything.” Id.

Hallmark relies heavily on the case of Cagle Supply of Lafayette, Inc. v. Hinson, 155 So.2d 773 (La.App. 3rd Cir. 1963), writ denied, 245 La. 83, 157 So.2d 230 (1963). Cagle Supply involved the garnishment of sums in the hands of a contractor who had subcontracted with the defendant-debtor. Under the terms of the construction contract, as found by the court in that case, payments due to the subcontractor were conditioned upon the subcontractor settling all claims for labor and materials. Numerous claims and threats of liens had been made known to the contractor prior to the service of the garnishment interrogatories. The subcontractor failed to comply with the terms of the contract by settling the claims for labor and materials. The court found that under the contract no payments were due from the contractor to the subcontractor because the subcontractor failed to settle the labor and material claims; thus, no funds in the hands of the contractor were subject to garnishment by the plaintiff.

The facts in Cagle Supply are distinguishable from the facts in the case at bar. In this case, the trial court found and the record reveals that at the time of the service of the garnishment interrogatories Mason was in substantial compliance with the terms of the construction contract. No liens had been filed against the property at the time of service of the garnishment interrogatories, and Mason was not in default. Under terms of the contract the owner was indebted to Mason for $44,-593.90.

Hallmark also relies upon the case of Lindsay v. Brown, 104 So.2d 211 (La.App. 2nd Cir. 1958). The court in Lindsay held that an owner who has knowledge of labor and material claims as well as knowledge of an assignment of funds has the right, as garnishee, to retain in its hands an amount sufficient for its own protection. The court also stated: “A garnishee who has funds in his possession or under control, due and owing to a judgment debtor, is simply a stakeholder and has no real interest in the disposition thereof so long as he is protected against subsequent claims arising from the source of the indebtedness.” 104 So.2d at 213 (emphasis added).

The facts and circumstances of the case at bar are also distinguishable from those in Lindsay. At the time of service of the garnishment process upon Houma Aviation, Mason had substantially complied with his obligations under the contract. The owner had no knowledge of any existing claims or liens that had been unpaid by Mason. Additionally, Houma Aviation was protected against liens and default by the surety bond issued by Hallmark.

Hallmark contends in brief that if the judgment of the trial court is affirmed Hallmark will be in the red by some $17,-722.40. We do not dispute that this is true, but this is exactly what Hallmark bargained for when it agreed to be the surety for Mason. Hallmark could have checked Mason’s credit references and, as a condition for the bond, required that labor and material payments be made directly to the laborers and materialmen by Houma Aviation. For a similar suggestion, see Morehouse Lumber, supra, 139 So. at 718.

We disagree with Hallmark’s statement that persons who supply labor and material for a private works project have a vested right in the funds retained by the owner. Laborers and materialmen have a right to file a lien against the owner’s property for payment for their services and supplies. As the court in Morehouse Lumber noted, all liens are stricti juris. The liens referred to in the private works act are upon the land and improvements only and are enforceable only when evidenced as provided by the act. See La.R.S. 9:4801 et seq. The owner in this case has protected itself from liens against the land and improvements by requiring a surety bond from the contractor.

Hallmark contends that “to allow garnishment such as the present one to exist under Louisiana law would inflict severe injuries not only upon owners but upon sureties and the contracting industry as a whole. Owners, such as Houma Aviation, would be faced with the prospect of third party creditors seizing funds which the contractor legitimately intends and which the owners have a right to expect shall be paid to subcontractors and materialmen. This diversion of the funds from their rightful purpose may well lead to serious injury to the owner in that he may very well be required to pay twice, i. e. he will have to pay the contractor-creditor and the unpaid materialmen and subcontractors.” Hallmark’s argument, however, ignores the fact that an owner may protect itself by requiring its contractor to be bonded. Indeed, this is what Houma Aviation did in this case. A surety may protect itself by checking a contractor’s credit record and refusing to bond a bad risk.

Hallmark additionally contends that since the garnishment interrogatories were served some two days prior to Mason’s request for payment, the seizure was ineffective against the sum due to Mason. As we have previously stated, Application for Payment No. 5 was for work performed up to two days prior to the application. The application dated December 10 therefore covered work done through December 8. It follows that service of garnishment process on December 8 was effective to seize the sum applied for by Mason on December 10 and certified by the architect as being due on December 13. The fact that the architect later revoked the certificate of payment does not take away from the fact that a definite sum was due and owing to Mason at the time the garnishment process was served.

We note, too, that the articles of the Louisiana Code of Civil Procedure dealing with garnishment provide that a debt may be seized even though it is not due.

Article 2411 provides, inter alia, that a garnishee must declare under oath “in what amount he is indebted to [the judgment creditor], even though the debt may not be due.” Article 2415 provides that when a garnishee is found to be indebted to the judgment debtor, the court shall order the garnishee to pay the sheriff the indebtedness “when due.” These articles provide that a debt may be seized even if it is not technically due on the date of seizure.

Hallmark additionally asserts that as the surety who completed the work it was sub-rogated to the owner’s rights and to the claims of laborers and materialmen which were paid by Hallmark. However, Hallmark’s subrogation rights did not arise until the claims were paid and no payments were made until well after the garnishment process was served. At the time of the service of garnishment process, Hallmark was sub-rogated to no one. Hallmark’s contention, therefore, is invalid.

Having found that Blair’s seizure was proper and that Hallmark’s contentions are invalid, we need not address Hallmark’s claim that the seizure was improper and that damages are therefore due.

ARCHITECT’S NEGLIGENCE

Hallmark’s final claim is that, in the event we find, as we have, that the seizure was proper, Thibodeaux should be held liable to the surety because of the architect’s negligence. Specifically, Hallmark contends that the architects were negligent in issuing Certificate of Payment No. 5 when they knew that the garnishment interrogatories had been filed and that claims of laborers and materialmen had been submitted on the job.

Our courts have held that an engineer or architect owes the same degree of care to the surety as he owes to the owner. Those practicing learned professions, like architects and engineers, must exercise that degree of professional care and skill customarily employed by others of the same profession in the same general area. Calandro Development, Inc. v. R. M. Butler Contractors, Inc., 249 So.2d 254 (La.App. 1st Cir. 1971); American Fidelity Fire Insurance Company v. Pavia-Byrne Engineering Corporation, et al., 393 So.2d 830 (La.App. 2nd Cir. 1981).

While Hallmark points to a number of contract provisions and a number of occurrences that it contends show negligence on the part of the architect, Hallmark introduced no evidence to show what degree of professional care and skill is customarily employed by other architects in the Terre-bonne Parish area. From the record before us, we cannot say that Thibodeaux was negligent in handling its duties under the construction contract.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.

PONDER, Judge,

concurring in part and dissenting in part.

I concur in the conclusion that the judgment creditor may seize the money due to the contractor under the facts of this case. Morehouse Lumber & Building Material Co., Inc. v. Jacob & Walker, 18 La.App. 536, 139 So. 713 (2d Cir. 1932).

I dissent from the conclusion that the architect did not violate the duty he owed to the surety, which is the same as that owed to the owner. Under the terms of the contract, the progress payments were due and payable only upon the certificate of the architect, who could withhold the approval to protect the owner. The supervising architect was informed of the seizure several days before the progress payment was applied for and approved. Under these circumstances, I am convinced that the architect should withhold approval and probably would have had there been no bond to protect the owner. The approval of the payment, together with Mr. Pierce’s comment that “. . . we do have a bond,” constitute, I believe, a cavalierly disregard for the welfare of the surety.

I believe, too, that the majority’s reliance upon the locality rule is misplaced. The rule has been abrogated in the case of some doctors, Ardoin v. Hartford Accident and Indemnity Company, 360 So.2d 1331 (La.1978), together with comments that throw doubt upon the continued viability of the rule, as applied to all professions.

I therefore dissent.

      . This case was consolidated with another suit which sought to garnish funds due Mason from Houma Aviation. Millard Blanchard d/b/a Blanchard Electrical Service v. Robert C. Mason, General Contractor, and Hallmark Insurance Company, No. 14339 on the Docket of the First Circuit Court of Appeal. The rights vel non of Blanchard to any of the proceeds due Mason from Houma Aviation have not been briefed and will not be considered in this judgment.

      . A. F. Blair Company, Inc. v. M & H Engineers and Construction Co., et al. No. 178,172 on the Docket of the Nineteenth Judicial District Court, East Baton Rouge Parish, Louisiana.

      . The difference between the amount applied for and the amount certified was due to retain-ages and work which the architect felt had not been properly completed.

      . La.C.C.P. art. 2414 provides:
      “The clerk shall cause written notice of the filing of the garnishee’s answer to be served promptly upon the seizing creditor in the manner provided by Article 1314.
      “Unless the creditor files a contradictory motion traversing the answer of the garnishee within fifteen days after service upon him of the notice of the filing of the garnishee’s answer, any property of the judgment debtor in the possession of the garnishee and any indebtedness to the judgment debtor which the garnishee has not admitted holding or owing shall be released from seizure. A new seizure may be made of such property or indebtedness by filing a supplemental petition and serving additional interrogatories.”

      . La.C.C.P. art. 2415 provides:
      “When the garnishee admits in his answer, or when on trial of a contradictory motion under Article 2413 or Article 2414 it is found that he has in his possession property belonging to the judgment debtor or is indebted to him, the court shall order the garnishee to deliver the property immediately to the sheriff or to pay him the indebtedness when due. Delivery or payment to the sheriff discharges the garnishee’s obligation to the judgment debtor to the extent of the delivery or payment.
      “This article does not apply to garnishment of wages, salaries, or commissions.”


source: Caselaw Access Project

author: WALKER, Justice, for the Court:

license: Public Domain

text:
    MASSEY-FERGUSON, INC., and Massey-Ferguson Credit Corporation v. Bernie EVANS.
    No. 52865.
    Supreme Court of Mississippi.
    Oct. 7, 1981.

      Powell & Thrash, Roy D. Powell, Jackson, for appellants.
    Zuccaro, Riley, Pintard, Brown & Carby, J. Walter Brown, Jr., Natchez, for appellee.
    Before ROBERTSON, P.J., and WALKER and LEE, JJ.
   WALKER, Justice, for the Court:

This is an appeal from the Chancery Court of Wilkinson County involving two cases consolidated by the Court for the purpose of trial. The first case was on bill of complaint of Massey-Ferguson Credit Corporation against Bernie Evans to recover a deficiency judgment on three installment contracts covering agriculture equipment purchased by Bernie Evans from Massey-Ferguson, Inc. of Yazoo City. The second case was by Evans against Massey-Ferguson, Inc. for damages, both actual and consequential, arising from defects in the equipment purchased and breach of express and implied warranties.

The three installment contracts sued on by Massey-Ferguson Credit Corporation involved a new Massey-Ferguson grain drill, a used Massey-Ferguson combine, a water tank and trailer and a used disc harrow.

In the suit by Massey-Ferguson Credit Corporation against Evans, the chancellor awarded a deficiency judgment in the amount of $732.03 resulting from the repossession and sale of the water tank and trailer and disc harrow but did not award a deficiency judgment arising out of the repossession and sale of the grain drill or combine for reasons hereinafter discussed.

In the case of Bernie Evans v. Massey-Ferguson, Inc., the court awarded a judgment to Evans for $9,989.11 resulting from a breach of express and implied warranties with respect to said equipment.

The chancellor found that because of the two appellants’ similarity of interest, characterized by their interlocking directorates, Massey-Ferguson Credit Corporation was not a holder in due course and that Evans was entitled to raise any defenses against Massey-Ferguson Credit Corporation that he could have raised against the original seller, Massey-Ferguson, Inc.

We have carefully and meticulously considered the record in this case and are of the opinion that neither the grain drill nor the combine were in operable condition when they were delivered to Evans and were never thereafter put in operating condition during the time that Mr. Evans had possession of the equipment. The chancellor’s finding in this regard was not only supported by the record but was eminently correct.

In view of the chancellor’s finding, it goes without argument that Massey-Ferguson breached its new equipment warranty that the equipment would be free of defects in material and workmanship at time of delivery to Evans, the first retail purchaser. We are of the opinion that there was also a breach of the implied warranty of merchantability found in Mississippi Code Annotated section 75-2-314(2)(c) (Supp.1980) in that neither the grain drill nor the combine were fit for the ordinary purpose for which such goods are used.

We are of the further opinion that there was a breach of the implied warranty as provided for in Mississippi Code Annotated section 75-2-315 (Supp.1980) which states:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.

With regard to the last warranty, ordinarily referred to as “Fitness for particular purpose,” Massey-Ferguson’s salesman, John Warren, who was called as a witness for Massey-Ferguson, testified that he knew Bernie Evans had never farmed before and that Evans intended to use the equipment purchased to farm 200 acres in Wilkinson County. Mr. Warren further testified that he explained to Mr. Evans all that he knew about farming and assisted Mr. Evans in selecting the equipment that he would need in his farming operation. He testified that he assured Mr. Evans the combine would be in “field ready” condition and would be ready to cut soybeans. The evidence is clearly to the effect, along with reasonable inferences to be drawn from it, that Mr. Evans relied on Mr. Warren’s skill and judgment to select suitable equipment for Evans’ soybean operation. Although Massey-Ferguson attempted to repair the equipment, it failed to ever place the machinery in operating condition. Thus, Massey-Ferguson’s liability to Evans for breach of warranty was clearly established.

A warranty by a seller that goods will be repaired or replaced if found to be in defective condition implicitly provides that the seller has the capability of making such repairs or replacement within a reasonable time. This capability means that the seller has reasonably available personnel qualified to make the repairs and that any parts necessary for such repairs are readily available.

The appellants contend that the written contract, i. e., the purchase orders and the express limited warranties which. are attached to this opinion as Exhibit “A”, limited the buyer’s remedy to repair or replacement of the new machinery at the option of the seller, and which provided that the used equipment was sold “as is without warranty of any character, express or implied, unless buyer has received from seller a separate written warranty executed by seller,” and which further provided “that in no event shall the owner be entitled to recover for incidental or consequential damages, ... other commercial losses, inconvenience or cost of rental or replacement equipment.”

In this regard, the appellants contend, citing much authority, that the trial court erroneously allowed oral testimony that at the time of the parties’ negotiation for the equipment and at the time the sale was consummated, the seller assured Mr. Evans that the equipment would be delivered in “field ready condition.” Appellants argue that this violates the rule against allowing oral testimony to change the terms of a written contract. However, this argument overlooks the fact that the new grain drill was covered by the Massey-Ferguson new agricultural equipment warranty which warrants new agriculture equipment to be free of defects in material and workmanship at time of delivery to the first retail purchaser. We are of the opinion and so hold that such a warranty encompasses the proposition that the equipment would be in “field ready” condition. “Field ready” condition simply means that the equipment is ready to be used in the field and is consistent with Massey-Ferguson’s warranty that the machinery is free of defects in material and workmanship at the time of delivery.

Massey-Ferguson’s argument with respect to the contract as it relates to the used equipment, i. e., that it was purchased on an “as is” and “where is” basis without any warranty, express or implied, must also fail because of two statutory enactments. First, Mississippi Code Annotated section 75-2-719(4) (Supp.1980) provides that:

Any limitation of remedies which would deprive the buyer of a remedy to which he may be entitled for breach of an implied warranty of merchantability or fitness for a particular purpose shall be prohibited.

And, Mississippi Code Annotated section 11-7-18 (Supp.1980) which further emphasizes this prohibition states:

There shall be no limitation of remedies or disclaimer of liability as to any implied warranty of merchantability or fitness for a particular purpose.

In Mississippi, implied warranties are governed by Mississippi Code Annotated section 75-2-314 (Supp.1980) and reads, in part, as follows:

(1) A warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section, the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as
(c) are fit for the ordinary purposes for which such goods are used; and
(3) Other implied warranties may arise from course of dealing or usage of trade.

The evidence in this case clearly established that the combine was not reasonably operable when it was delivered to the buyer, Mr. Evans, and was not fit for the ordinary purposes for which a combine is used and was not put in reasonably operable condition after the seller, Massey-Ferguson, became aware of its many defects. In fact, Evans had to borrow a combine to harvest most of his soybeans. In short, the combine was not merchantable.

A breach of warranty having been clearly established, Evans was entitled to allowable damages. A buyer’s damages for breach in regard to accepted goods is controlled by Mississippi Code Annotated section 75-2-714 (1972) which provides:

(1) Where the buyer has accepted goods and given notification ... he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(3) In a proper ease any incidental and consequential damages under section 75— 2-715 may be recovered. (Emphasis added).

And Mississippi Code Annotated section 75-2-715 (1972) states:

(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
(2) Consequential damages resulting from the seller’s breach include
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty. (Emphasis added).

In the case sub judice, since the seller, Massey-Ferguson, Inc., and the financing corporation, Massey-Ferguson Credit Corporation, are deemed to be one and the same because of their interlocking directorates, it was improper for the chancellor to allow, as a part of Evans’ damages, the difference between the value of the goods accepted and the value they would have had if they had been as warranted, because this would amount to a windfall or unjust enrichment since he only had invested in the grain drill and combine a down payment of $1,510.54. Therefore, his damages with respect to the value of the equipment should have been limited to $1,510.54 instead of $5,189.11 as allowed by the court.

The appellants strongly argue that Massey-Ferguson’s damages with respect to the new grain drill was limited by the written warranty to either repair or replacement of any defects, at the option of the seller. However, as in Ford Motor Company v. Fairley, 398 So.2d 216 (1981), such limitation of damages as allowed under section 75-2-719 presupposes that the warrantor has fulfilled his warranty. In this case it (Massey-Ferguson) failed to either repair or replace the defective equipment and, therefore ■ breached its warranty. Under these circumstances, the buyer’s remedies are governed by section 75-2-714 and section 75-2-715(2)(a) as above quoted.

The appellants argue that the chancellor erred in allowing consequential damages in the form of crop loss because it would be purely speculative and conjectural. We do not think the chancellor erred in this regard.

Section 75-2-715(2)(a) defines consequential damages as follows: “any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise .... ” This section has been interpreted to allow a plaintiff to recover lost profits if the seller has reason to know at the time of contracting that if he breached the contract, the plaintiff would be deprived of those profits. The subsection also imposes two restrictions in addition to foreseeability. The damages must be reasonably ascertainable and the plaintiff cannot recover from losses he reasonably could have prevented. J. Wight and S. Summers, Handbook of the Law Under the Uniform Commercial Code (2nd ed. 1980). The authors conclude their discussion of section 2-715 as follows:

To sum up what we have said about consequential damages, 2-715(2) codifies the more liberal reading of Hadley v. Baxendale. Most of the courts have recognized that a seller is liable for all damages resulting from his breach if they arise from circumstances that the seller knew about or had reason to know about, even if he did not consciously assume the risk of such liability. The plaintiff can recover lost profits if the seller had reason to know at the time of contracting that if he breached the contract the plaintiff would be deprived of those profits. But subsection (2) imposes two restrictions on the recovery of consequential damages in addition to the foreseeability requirement: they must be reasonably ascertainable, and the plaintiff cannot recover for losses he reasonably could have prevented. While damages for injuries to person and property may be recovered under 2-715(2)(b) even if they were not foreseeable, the requirement that injuries proximately result from a breach of warranty probably embraces the mitigation restriction.
Section 2-715(2) is remarkably brief in light of its impact; whether or not consequential damages are allowed can mean the difference between a fifty-cent and a million-dollar damages award. For example, if a defective fifty-cent bolt snaps, it may cause the deaths of thirty children riding a school bus or the break-down for several months of a giant generator needed to operate a factory. The consequential damages provisions provide the only Code remedy that can come close to fully compensating plaintiffs in these cases. Because of the brevity and significance of 2 — 715, it is important to remember that it draws on over a century of common law development, which began with Hadley v. Baxendale. (pp. 396-397).

In this case, the seller could easily foresee at the time of contracting that undesirable consequences would follow if Evans could not timely plant his soybean corp. He also reasonably should have known that the delivery of the drill, unassembled, and the ineffective repairs would cause such a delay in the planting. It was undisputed at trial that Evans made every effort to mitigate his damages as required. He bought a manual slinger, attempted to repair the machinery, and borrowed a neighbor’s grain drill to complete his planting.

The chancellor awarded Evans consequential damages for the losses he was unable to mitigate. This amount ($4,800) represents the difference between Evans’ investment and the recoupment from the sale of the soybeans. He was not awarded damages for his labor, nor for the normal crop yield in the area.

For the above reasons, we conclude that the chancellor was correct in awarding Evans the consequential damages that resulted from the seller’s breach of its express warranty to repair or replace the grain drill.

The final issue raised by appellants concern the chancellor’s finding that Massey-Ferguson Credit Corporation was not a holder in due course because the two corporations had interlocking directorships. We find that this determination by the chancellor was correct. It is well established that transactions by corporations with interlocking directorates will be given close scrutiny by the courts. 19 C.J.S. Corporations § 787 (1940); Guntharp v. Planters Oil Mill, 358 So.2d 397 (Miss.1978); Bentz v. Vardaman Mfg. Co., 210 So.2d 35 (Miss.1968). The chancellor found the Credit Corporation did not meet the requirement that a holder in due course must take “in good faith,” and “without notice ... of any defenses or claims on the part of any person.” Miss. Code Ann. § 75-3-302 (1972). We cannot say from a review of the record that this determination was in error.

Therefore, for the reasons expressed in this opinion, the chancellor’s award to Bernie Evans for actual damages in the amount of $9,989.11 is reversed and reduced to $1,510.54. The chancellor’s award of consequential damages of $4,800.00 resulting from crop loss is affirmed. The judgment entered in the lower court is modified accordingly, and a total judgment in the sum of $6,310.54 is rendered here in favor of Bernie Evans against Massey-Ferguson, Inc.

AFFIRMED AS MODIFIED.

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

EXHIBIT “A”

ADDITIONAL TERMS AND CONDITIONS

(1) Buyer (s) acknowledges receipt of property as described herein in good order and condition.

Í2) Buyer (s) represents that trade-in property, if any, is free and clear of all security agreements, liens and encumbrances.

(3) Seller may assign this contract and the assignee shall succeed to all seller's rights. No assignment or extension hereof or of any interest herein, or loss, injury or destruction of said goods shall release buyer (s) from obligation hereunder. Buyer (s) will not set up any claim, or defense which he may have against the seller as defense, counterclaim, set-off, cross-complaint or otherwise, in any action upon the debt or for possession brought by the seller's assignee.

(4) If this contract is referred to an attorney for collection, the buyer (s) agrees to pay reasonable attorney's fees apd legal expenses.

(5) Buyer (s) shall maintain required property damage ins urance; shall keep said property free of all liens, taxes, encumbrances and seizure or levy; shall not use the same illegally; shall not damage, abuse, misuse, abandon or lose said property; shall not dispose of or transfer any interest in said property or remove it out of the county or filing district in which buyer resides as indicated herein, without prior written approval of seller.

(ó) If buyer ($} falls to make a payment when due or fails to comply with any terms hereof or becomes insolvent, or if a proceeding in bankruptcy or receivership is instituted by or against buyer, or if seller deems itself insecure and so declares, all payments heretofore made by the buyer (s) shall be retained by the seller and all indebtedness hereunder shall become immediately due and payable and seller shall have all the rights and remedies of a Secured Party under the Uniform Commercial Code and may, without notice, enter any premises where said property may be and take possession thereof and remove the same, together with replacements and accessories, or seller may require buyer (s) to assemble the property and make it available at a place designated by seller. Seller may resell retaken property at public or private sale with notice to buyer (s) and the proceeds of any such sale (less reasonable expenses of retaking, repairing, holding, preparing for sale, selling and the like including reasonable attorney's fees and legal expenses) shall be credited upon the apiount unpaid. Buyer (s) agrees to pay any deficiency upon demand by seller, any surplus, however, shall be paid to buyer (t). Said retaking shall not be deemed rescission of this contract. Seller may accept partial payments of any sums due herein without waiving or otherwise modifying the terms of this contract. Waiver by seller of any default shall not be deemed a waiver of any other default.

(7) Payments received are to be applied first to delinquent finance charges, if any, and then to the balance of the a* mount owing.

(8) Seller is not to be bound by any verbal agreement or verba! modification of this contract.

(9) Any provision hereof invalid in any state shall be inoperative as to such state, but without invalidating the remaining provisions hereof.

WARRANTY new massey-ferguson machines

Each NEW item of equipment covered by this contract is sold under the regular warranty of the manufacturer and no other, and Buyer hereby acknowledges receipt of a copy of such warranty.

WARRANTY all used machinery

Each USED item of equipment covered by this contract is sold AS IS WITHOUT WARRANTY OF ANY CHARACTER expressed or implied, unless Buyer has received from Seller a separate written warranty executed by Seller.

NOTICE OF INSURANCE

PROPERTY DAMAGE: If buyer has property damage insurance hereunder and Massey-Ferguson Credit Corporation accepts the assignment of this contract the insurance coverage shall be as follows: policy covers loss or damage of property not exceeding (1) the actual cost of repairing or if necessary replacing the equipment or parts thereof damaged or destroyed, subject always to deduction for depreciation, or (2) actual cash value of the equipment or parts thereof lost, damaged or destroyed. (3) In no event shall this policy's liability exceed the actual cash selling price at time of purchase. Coverage is subject to exclusions and deductibles as recited in the Statement or Certificate of Insurance which will be furnished to buyer by assignee.

CREDIT LIFE: If buyer has credit life insurance hereunder, a Certificate of Insurance reciting the terms and conditions thereof shall be furnished to buyer by Massey-Ferguson Credit Corporation.

TERM: The term of property damage and credit life insurance commences on the date of this contract and ends upon full payment, unless terminated in accordance with the conditions set forth in the insurance certificates to be furnished the Buyer.

LIABILITY INSURANCE: There is no insurance coverage for personal liability or property damage caused to others.


author: HAWKINS, Justice,

text:
    Jerry Brady WEED v. STATE of Mississippi.
    No. 52875.
    Supreme Court of Mississippi.
    Nov. 4, 1981.
    Rehearing Denied Dec. 2, 1981.

      Neblett, Bobo & Chapman, Ralph E. Chapman, Clarksdale, for appellant.
    Bill Allain, Atty. Gen., by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Jerry Brady Weed appeals from a conviction of manslaughter in the Circuit Court of Washington County and a sentence of twelve (12) years with the State Department of Corrections. We affirm.

The assignments of error raised on his appeal which we address are:

(1) Failure of the circuit judge to sustain Weed’s motion to suppress his oral statement given to officers of the Greenville Police Department.

(2) Failure of the circuit judge to order sequestration of the entire panel summoned for the special venire.

(3) Refusal of the circuit judge to grant Weed’s motion for mistrial following comment by the special prosecutor during an opening statement to the jury as to what the jury would hear from the defendant.

(4) The trial court’s error in sustaining the State’s objection to evidence pertaining to decedent’s use of drugs.

Weed, age 36 at trial, is a disabled Vietnam Veteran, having suffered the loss of one leg and one eye. At the time of the shooting, Weed had been married three times, had six children, and was separated from his third wife.

Weed had known Jerry Pearce, the victim, for 15 years. On October 18, 1979, Weed shot Pearce three times at the home of Weed’s parents, and Pearce died three days later.

On January 21, 1980, Weed was indicted for the crime of murder. It is not necessary to detail the evidence at this point since there was ample proof to sustain his conviction; the assignment of error to the contrary does not warrant discussion. Rather, the facts surrounding each assignment of error shall be related upon discussion of the error.

I.

Should the trial court have sustained Weed’s motion to suppress oral statements he made to the police officers?

When the officers arrived at the home of Weed’s parents, they found Pearce lying in the carport mortally wounded. Pearce was taken to the hospital, and Weed was given the Miranda warnings. Weed acknowledged shooting Pearce, and the admissibility of these statements is not contested. Weed contends, however, that statements made after his arrest at the Greenville Police Department should have been suppressed. At the hearing on the motion to suppress these statements, only Sergeant Ronald W. Nance testified; Weed offered no testimony to rebut this.

Nance testified he first saw Weed in the booking area. After Weed was taken to the office of Major Charles Cochran of the Greenville Police Department by Officer David Froman, Nance advised Weed of his constitutional rights, using the standard form for criminal cases. As he read the form, Nance stopped at the end of each sentence to ask Weed if he understood, and Weed replied that he did. The form fully complied with the warnings required under the state and federal constitutions to be given suspects in criminal cases.

When Nance completed reading the form, Weed asked if he could call his lawyer, Murray Akers. He was advised that he could. Weed called Aker’s office, and stated, “Let me talk to Murray. This is Jerry Weed.” He then paused, and stated further, “I shot somebody. I’m at the police station and I need a lawyer.” Weed then hung up the telephone and told Officers Nance and Froman that Akers was in a meeting and could not talk with him.

Nance then handed Weed the rights form for Weed to read before signing. At first Weed said that he didn’t need to read it, but then stated, “I guess I’d better read it before I sign it.” He examined the form, and signed it. Nance and Froman then signed the form as witnesses.

Nance again asked Weed if he understood his rights, and he replied that he did. Nance then asked Weed if he wanted to tell him what happened. Weed replied that he wanted his lawyer and Nance responded that it was all right for them to wait until his lawyer was present.

There was no further suggestion from the officers. Then, according to Officer Nance:

Weed sat there for a minute, then he started talking about the incident that resulted in the charge, and what had happened prior to that, the night before. (R. 58).

After he had given the oral statement, Weed said he wanted his lawyer. The officers wrote out his statement in their own handwriting.

Weed offered no testimony at the hearing to suppress, and the testimony of Officer Nance stands uncontradicted in the record. Following the suppression hearing, the circuit judge stated as follows:

Well, it’s true he asked for a lawyer. I believe the record shows he asked for a lawyer three times. He was given” an opportunity to call a lawyer and he wasn’t able to get him, and from what I heard, then he just voluntarily made this statement. I don’t think they asked him any other questions—that’s what the evidence is today. If they had asked him some further questions, I certainly would rule in favor of the defendant, but when he just volunteers a statement, I don’t feel that the police are called on to say, “Just a minute—you said you wanted a lawyer and I’m not going to listen to you.” So I’m going to overrule your Motion to Suppress.” (R. 67).

At trial, both Officers Froman and Nance testified about the circumstances that occurred when Weed gave the oral statement at the Greenville Police Department. Their testimony, which was substantially the same as the account given by Officer Nance at the suppression hearing, was not contradicted. Weed took the stand and denied making any incriminating statements to the officers, calling their statements “lies.”

If Weed had any disagreement whatsoever as to the circumstances under which he gave the statement to the officers at the Greenville Police Department, he had had two opportunities to present his version: once at the suppression hearing and again during trial by requesting a hearing on the competency of the statement before its submission to the jury. He did neither. The uncontradicted testimony must therefore be accepted by this Court.

Counsel for Weed further argues that the State failed to make a prima facie showing of the admissibility of the statement. We disagree.

He argues that it was necessary for all officers present to testify on a hearing to test the competency of the statement. This is without merit, however, since Weed did not contradict Nance’s testimony at the hearing on the motion, or Nance’s and Fro-man’s testimony when the statement was offered at the trial. Agee v. State, 185 So.2d 671 (Miss.1966).

The United States Supreme Court has announced guidelines on the admissibility of statements given by an accused following his request for an attorney. The first consideration is whether there was an “interrogation” following the defendant’s request for an attorney. Under the holding of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), w'e find, as did the trial judge in the present case there was no further interrogation of Weed following his request for his lawyer. He simply sat there a few moments and then voluntarily began to relate to the officers present what had happened.

Even if Officer Nance’s inquiry was deemed an “interrogation” the officers scrupulously honored the defendant’s right to remain silent when he requested his attorney. Weed intentionally waived his right to counsel during questioning when he chose to speak.

The officers did not engage in the type of conduct condemned in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). The officers did not persist in their questioning nor exert pressure of any kind toward Weed in an effort to compel him to make a statement. See also Mansell v. State, 403 So.2d 871 (Miss.1981). Therefore, the statements given by Weed to the officers were competent and properly admitted into evidence to be considered by the jury.

II.

In addition to the regular panel, upon motion by Weed, a special venire of 125 citizens was summoned. The defendant argues in his brief that two of the decedent’s sisters were seen talking to a prospective juror summoned for the special venire and this caused him prejudice in his defense. This juror denied that he even saw these women, and absolutely no misconduct on the part of any prospective juror was shown to the trial judge that would have resulted in prejudice towards the defendant. His main argument is addressed to. the supposed duty of a circuit judge to sequester the entire panel of a special venire, and presumably, the regular panel as well, (it being well known the special venire is oft-times exhausted) in a capital case prior to their being selected as jurors for the trial of the case.

The only reason we address this assignment is to put to rest any future contention by trial attorneys that a circuit judge is under any duty to sequester a panel of prospective jurors before their selection as members of the trial panel. Circuit judges do the best they can with the great number of people being summoned for jury duty. It would require a platoon of the local national guard to keep them sequestered from the time they first appear in court under a summons until the jury panel is completely selected. It would cause needless and great expense to the county. If we agreed with imaginative defense counsel, the next request we could expect of a circuit judge would be to have prospective jurors placed into custody when a subpoena was handed them.

The law requires no such measures.

Of course, it is well established that after their selection as jurors to try a capital case, the trial panel must be sequestered. McQuillen v. State, 16 Miss. 587 (1847); Clark v. State, 209 Miss. 586, 48 So.2d 127 (1950); Grimsley v. State, 212 Miss. 229, 54 So.2d 277 (1951).

III.

Was the defendant entitled to a mistrial based upon the following comment by the special prosecutor to the jury during the opening statement: “... he [Pearce] hadn’t done anything that would put this defendant in fear of imminent, immediate bodily harm, which you’re going to hear a great deal more about from the defendant.” (R. 193).

Following this statement defense counsel made a motion for a mistrial in chambers, which was overruled. When the state rested, he again moved for a mistrial, claiming the comment was forcing him to make the decision to have Weed take the stand, a decision he might not otherwise have to make absent the prosecutor’s comment.

On this assignment of error, we cannot avoid the suspicion that counsel was somewhat disingenuous with both the trial court and this Court.

In his questioning of the jury, defense counsel made it clear that he intended to place Weed on the stand. He asked the prospective jurors, more than once, if they could try Weed on the facts of this case alone, and disregard his previous convictions for assault and battery and for grand larceny. Defense counsel well knew that these prior convictions would have been incompetent as evidence at trial had Weed never taken the stand as a witness in his own behalf. It is inconceivable to this Court that he would have asked such questions of the jury if he did not firmly intend at that time to have his client take the stand. Also, in his questions to the jury, he stated that the defense was self-defense: Weed shot Pearce, “.. . because he knew or had good reason to believe that he was in danger of imminent, great bodily harm.”

These comments by defense counsel were all made before the objectionable statement was made by the special prosecutor to the jury. It could very well be argued that these questions invited the comment by the special prosecutor. It certainly reveals that the prosecution was not attempting to badger the accused into testifying.

Furthermore, in his opening statement to the jury, and following the statement by the prosecution, defense counsel made it clear that he expected Weed to testify in his own behalf. He related facts to the jury that he expected to prove which could only have been related by the defendant.

Finally, if any error was committed by this comment, it was cured by Weed actually taking the stand as a witness in his own behalf. Here we do not have the facts similar to those found in Hines v. State, 339 So.2d 56 (Miss.1976), wherein a similar comment was made by the prosecutor during voir dire of the jury. Because the circumstances under which the prosecutor made the statement are different than in Hines, and because the defendant did not testify in that case, it is not controlling here.

We therefore hold this assignment of error to be without merit.

We are not unmindful of the serious consequences which must befall the prosecution of the state’s case when some comment is made by state’s counsel or the trial judge, either before or following the presentation of the defense in chief, reflecting upon this constitutional right of a defendant to remain silent. We again urge, as we have upon numerous occasions heretofore, for trial courts and the state’s counsel to be especially circumspect in this area.

In this case, however, no reversible error was committed, if there was error at all under the circumstances.

IV.

Did the court err in excluding evidence pertaining to the reputation of the decedent as a habitual user of drugs, the record of a chancery court proceeding showing him to be a drug abuser and dangerous to himself and others, and a hospital record of decedent’s commitment as a drug addict?

With prosecutions for bizarre, terrible crimes committed by persons under the influence of some drug, crowding, and sometimes choking, our circuit court dockets, this Court cannot be unmindful of the relevancy of a decedent’s reputation as a user of drugs where a jury question has been raised as to who was the aggressor in a homicide. Indeed, long before the epidemic of drug related crimes, we held in Moseley v. State, 89 Miss. 802, 41 So. 384 (1906), the general reputation of a decedent as a violent and dangerous man when under the influence of cocaine was competent, relevant evidence for the consideration of the jury when the defense of self-defense is at issue.

Also, a hospital record revealing drug addiction or a mental condition of a decedent rendering him dangerous to society may likewise be material in determining whether an accused acted in lawful self-defense where a jury issue has been raised as to who was the aggressor. A trial judge using his discretion can excise the portions of the record which are irrelevant and permit the introduction of the pertinent parts pertaining to his addiction and the effects on his mental condition. The relevant portions of such records, or properly certified copies thereof, should not be denied an accused under a lawful claim of self-defense. On the admissibility of such records see generally Britt v. All American Assurance Company of Louisiana, 333 So.2d 629 (Miss.1976); City of Bay St. Louis v. Johnston, 222 So.2d 841 (Miss.1969); Miss. Code Ann. § 13-1-77 (1972) (chancery court records); and Miss. Code Ann. § 41-9-101 et seq. (1972) (records of mental institutions and hospitals; Miss. Code Ann. § 41-17-9 (1972).

In State v. Shahane, 219 N.W. 132, 56 N.D. 642 (1928), the North Dakota Supreme Court stated, “.. . [I]t was competent for the defense to show, if it could be shown, that the deceased was afflicted with a form of insanity at the time of the homicide which made him a dangerous man... The purpose of evidence of turbulence and violence on the part of the deceased in homicide, is to show the honesty of the belief of the accused of imminent peril.” If the deceased had a mental condition rendering him dangerous to society, or was a habitual user or addicted to drugs, and such fact was known to the defendant, he should not be denied the right to place this proof before the jury in determining whether or not he acted in lawful self-defense.

In determining relevancy of such mental condition or drug addiction, we agree with the holding of the Supreme Court of North Dakota in Shahane, the criterion for admissibility of such proof is similar to proof of threats made by the deceased against the accused. Some Mississippi cases setting forth grounds for admissibility of threats are Washington v. State, 307 So.2d 430 (Miss.1975); Shinall v. State, 199 So.2d 251 (Miss.1967); Rucker v. State, 248 Miss. 65, 158 So.2d 39 (1963); Muse v. State, 158 Miss. 449, 130 So. 693 (1930); Cain v. State, 135 Miss. 892, 100 So. 578 (1924).

In this case, however, such proof would have been secondary as well as cumulative, and its exclusion was harmless. We reach this conclusion because of the following direct and uncontradicted proof of the decedent’s condition on the day of the slaying:

(1) Leonard Weed, the brother of the accused, called as a witness for the state, and not as an adverse or hostile witness, testified that just a few minutes before the slaying, the deceased “appeared to be under some type of influence of drugs or something.” Further, “He just acted wild. He didn’t have any reason; he wouldn’t take no for an answer.” (R. 343).

(2) Rebecca Johnson, a witness for Weed, testified that, on the same day and shortly before the slaying, the deceased “was real upset.” He was “cussing and threatening” the defendant. Further, the deceased “was jumping around, waving his arms and pointing his finger” at the defendant, telling him, “I’m going to kill you, you s.o.b.” She further testified that the decedent was on drugs, an opinion she reached because she had seen him on drugs before. (R. 369; 370-371).

(3) Frank Trotter, who likewise observed the decedent at the time Rebecca Johnson observed him, testified that the decedent was threatening to kill the defendant, and the decedent “was pretty well messed up.” (R. 397).

(4) Patty Weed, the wife of Leonard Weed, testified that she saw the decedent just a few minutes before the slaying and “he looked wild eyed. I was scared of him.” (R. 411).

(5) Murray Akers, an attorney, observed the decedent the morning of the slaying, and testified, “His speech was slurred; he was less than steady on his feet at that time. Later on, in my office and close up, I had a chance to see that his eyes were dilated. He alternated between being either depressed or belligerent in response to what was being said to him, and his responses did not always match the questions put to him.”

(6)Mike Dees, a Greenville policeman who investigated the homicide, testified that he found a box of pills at the scene of the slaying. In response to the question of whether he knew the decedent had a propensity for taking drugs, he replied, “I have heard that.”

All of the above was in addition to the defendant’s own testimony concerning the decedent’s appearance on the day of the slaying prior to and at the time of the killing.

Furthermore, the defense was permitted to prove that the general reputation in the community of the decedent for peace or violence was bad, which was not disputed by the state.

The jury clearly had before it the uncon-tradicted evidence that on the day of the slaying, prior to and right up to the time of the homicide, the decedent, a man with a bad reputation for violence, was acting strangely, or deranged, and appeared to be under the influence of some type of drug. Also, he showed hostility towards and made serious threats to the defendant.

In Powell v. State, 145 Miss. 252, 110 So. 515 (1926), we held the exclusion from evidence before the jury of a communicated threat was harmless error in view of the admission of evidence of two other communicated threats. See also Evans v. State, 315 So.2d 1 (Miss.1975).

We must conclude in this case that the exclusion of testimony of the general reputation of the decedent as a habitual user of drugs, as well as the chancery court record, and hospital record, was harmless.

The record reflects a case ably prosecuted, vigorously and ably defended before a circuit judge who endeavored to reach the outermost limits in his rulings in favor of the defendant at various stages of the trial proceedings. We find no ground for reversal upon any of the assignments of error.

AFFIRMED.

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

      . The statement signed by Weed, from page 55 of the record, reads as follows:
      Before we ask you any questions, you must understand your rights.
      You have the right to remain silent.
      Anything you say can be used against you in court.
      You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
      If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
      If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
      WAIVER OF RIGHTS
      I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.


author: LEE, Justice,

text:
    Mary Ruth Henry WESTON, George F. Henry, Jr. and Horace E. Henry v. ESTATE OF Joseph A. LAWLER, Deceased, et al.
    No. 52933.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Mark W. Prewitt, Vicksburg, Henry Lee Rodgers, Louisville, for appellants.

      Lake Tindall, Hunger & Thackston, Edwin W. Tindall, Frank S. Thackston, Jr., Greenville, for appellees.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Mrs. Ruth Henry Weston, George F. Henry, Jr., and Horace E. Henry, sister and brothers by the half blood of J. A. Lawler, filed a'will contest in the Chancery Court of Washington County, Honorable Nat W. Bullard, presiding, after an instrument dated November 20, 1979, purported to have been executed by J. A. Lawler, was admitted to probate. The contestants contended that the testator lacked the mental capacity to execute a will and that the instrument resulted from undue influence of the executor, Paul R. Horne, Jr., and beneficiaries under the purported will. The proponents denied the averments of the contestants’ petition and the issues were tried before a jury on September 29 and 30, 1980. The proponents introduced the record of probate and rested. The contestants introduced evidence and, at the conclusion of that evidence, the trial court, on motion of the proponents, excluded same and directed a verdict in favor of the proponents. The contestants have appealed here from the judgment of the lower court.

The facts favorable to appellants indicate that in about 1974, J. A. Lawler fell twenty-five feet from a ladder while pruning a tree, suffered severe head injuries and was hospitalized for approximately two weeks. Subsequently, he experienced severe depression, memory lapses, and confusion. During 1976, Mr. Lawler was disoriented and confused. On May 24, 1976, he was examined by Dr. Robert Lee, who found that he was under stress and was suffering from reactive depression. Dr. Lee treated Mr. Lawler for hypertension and when he again saw him on July 6, 1976, his mental depression continued.

Dr. Lee examined Mr. Lawler on September 5, 1979, at the Delta Medical Center where he had been admitted for acute illnesses. Mr. Lawler was suffering from congestive heart failure, arteriosclerosis, uremia, and Parkinson’s Disease. He was confused and disoriented and was placed in the intensive care unit. On September 12, 1979, Mr. Lawler suffered a cardiac arrest and was transferred to the coronary care unit. His physical condition stabilized and he was released from the hospital into the care of his primary physician on September 24, 1979. He was mentally confused at the time of his release but did have lucid intervals.

On November 20, 1979, Mr. Lawler executed the will instrument, which was filed for probate in this cause. He was admitted to the hospital again on December 14, 1979, and remained there until he died on February 7, 1980. According to Dr. Irving Feurst, a doctor of internal medicine and psychiatry, a witness for the contestants, he examined and studied the hospital records pertaining to the hospitalization and treatment of Mr. Lawler, and, in his opinion, Mr. Lawler was suffering from the mentioned illnesses, had sustained brain damage and, on November 20, 1979, was not mentally competent to understand the nature of business such as disposing of his property. He testified that, on November 20, 1979, Mr. Lawler was not competent to execute the will instrument involved here.

Mr. Lawler moved into the home of Paul R. Horne, Jr., in 1976. Residing there were the proponents, Paul R. Horne, Jr., Thyra Crosby Jackson, his mother-in-law and a first cousin of Mr. Lawler, Linda Jackson, second cousin of Mr. Lawler, and Almyra Jackson Horne, the wife of Paul R. Horne, Jr. The executor, Horne, testified that, during the first part of 1976, Mr. Lawler began living in the household with him and the persons above mentioned, and, during the latter part of 1976, Horne prepared a last will and testament, which was executed by Mr. Lawler. On November 20,1979, the present will was executed by Mr. Lawler. Prior to that date, according to Horne, Mr. Lawler desired to change the will, and Horne contacted an attorney in Greenville, and gave him information as to how the will should be drawn. The instrument was prepared without Mr. Lawler going to the attorney and discussing the will and its contents with him. When the instrument was signed by Mr. Lawler, Horne made the arrangements for the execution of same but excused himself from the room when the instrument was actually signed. In 1976, Horne also prepared a general power of attorney which was executed by Mr. Lawler, granting Horne full power to do any and all things pertaining to the property of Mr. Lawler. Horne admitted that he attended to the business of Mr. Lawler during the years he was living in the Horne household, including writing checks and advising him concerning business matters. The November 20, 1979, instrument also named Horne a trustee for the handling and disposition of the estate property. Horne testified that he occupied a trustee relationship with Mr. Lawler.

I.

Did the lower court err by applying the two-witnesses rule?

The appellants originated this action by filing a petition for will contest. The affidavits to the petition set forth that the matters stated therein were true and correct and that all other matters stated were true and correct to the best of their knowledge, information and belief. Answer under oath was not waived. The proponents answered the petition and made oath that the matters and things set forth in the answer were true and correct as therein stated and were based on personal knowledge and information. The basis of the chancellor’s ruling, in the directed verdict for proponents was that the appellants did not waive answer under oath and failed to overcome the sworn answer. He applied the “two-witnesses rule” relying upon Fant v. Fant, 173 Miss. 472, 162 So. 159 (1935), which stated:

Was the bill here sworn to within the meaning of this statute? The oath required by the statute must be positive and on knowledge, not mere information and belief. “The object of that section is to entitle complainant to swear to his bill, and thus by putting his oath against that of defendant, to get clear of the rule requiring two witnesses, or one witness and corroborating circumstances, to overthrow an answer denying the allegations of the bill.” Jacks v. Bridewell, 51 Miss. 881. The defendant must swear to his answer on knowledge and not on information and belief in order to obtain the benefit of the rule. Carpenter v. Edwards, 64 Miss. 595, 1 So. 764; Snell v. Fewell, 64 Miss. 655, 1 So. 908; Toulme v. Clark, 64 Miss. 471, 1 So. 624; Purvis v. Woodward, 78 Miss. 922, 29 So. 917; Stewart v. Coleman & Co., 120 Miss. 28, 81 So. 653. The same rule, of course, must apply to a complainant; there being nothing in the statute showing a contrary intention. (173 Miss. at 485-486, 162 So. at 161).

The Fant case may be distinguished from the case sub judice. There, the action was initiated by an original bill of complaint to cancel a deed and the case was heard on bill and answer. The controversy here involved matters testamentary and of administration. In Lindeman’s Estate v. Herbert, 188 Miss. 842, 193 So. 790 (1940), the Court said:

Hence, even if Section 383 of the Code of 1930 [Section 11-5-33 Miss. Code 1972] had any application, the answers were entitled to be given “only such weight and credit as in view of the interest of the party making the same, and the other circumstances of the case, it may be fairly entitled to.” However, in matters testamentary and of administration no answers under oath were required, whether waived or not. Section 370 of the Code of 1930. The chancery court in the matter of estates administered may hear and determine objections and exceptions, etc. without adherence to the strict rules of pleading. (188 Miss. at 854-855, 193 So. at 793.)

See Reedy v. Alexander, 202 Miss. 80, 30 So.2d 599 (1947).

Mississippi Code Annotated section 11-5-49 (1972) provides that in matters testamentary no oath shall be required to any petition and such petition shall not be taken as confessed because of the want of an answer, but every such petition shall be supported by the proper evidence.

Without discussing this contention further, or considering Mississippi Code Annotated section 11-5-33 (1972) which abolished the two-witnesses rule in all cases where the bill is sworn to by the complainant, we are of the opinion that the two-witnesses rule is not applicable here and that the chancellor erred in following the principle stated in Fant, supra.

II.

Did the lower court err in granting the motion for a directed verdict at the conclusion of the contestants’ case?

The burden of proof is upon the proponents of a will to establish that it is the true and accurate last will of the testator. Such burden never shifts to the contestants, although the latter may have the burden of going forward with the proof. In McDowell v. Pennington, 394 So.2d 323 (Miss.1981), the Court stated:

Where there is a confidential relationship such as exists here, a presumption arises that the proponent(s) of the will exercised undue influence over the testator and the proponent(s) must overcome that presumption by clear and convincing evidence. The confidential relationship must result in a dominant influence by the beneficiary over the testator. In Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959), holding that Alder’s will was a result of undue influence, the Court said:
“[W]here a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it, the law raises a presumption that the beneficiary has exercised undue influence over the testator, and casts upon the beneficiary the burden of disproving undue influence by clear and convincing evidence.” 237 Miss. at 722-723, 115 So.2d at 686. (394 So.2d at 325).

The facts in McDowell are similar to the facts of this case, although Pennington, the executor, was a beneficiary in the will. In the present case, the testator resided in the home of Horne, the executor, along with Horne’s mother-in-law and wife, who were beneficiaries in Mr. Lawler’s will. Horne held a general power of attorney over all Mr. Lawler’s property, and he was a trustee under the will with authority to pay net income from the trust to his (Horne’s) mother-in-law, Thyra Crosby Jackson, and, in the event she predeceased Mr. Lawler, then Horne, as trustee, was authorized to establish trusts in equal shares for his own wife and sister-in-law and to pay net income from the trusts to them.

Undue influence over a testator, while not exercised by a beneficiary under the will, may be done so through an agency or a third person. 94 C.J.S. Wills, § 235 at 1084 (1956); 79 Am.Jur.2d Wills § 394 at 553 (1975); Annot., 96 A.L.R. 613 (1935). We see no logical reason why, under the facts of this case, the confidential relationship existing between Horne and Mr. Lawler should not be extended to Horne’s wife and mother-in-law, and, in our opinion, such facts require that the confidential relationship be so extended. Therefore, the proponents, in addition to having the burden of proving the instrument to be the true and accurate will of Mr. Lawler, also had the duty of meeting that burden by clear and convincing evidence.

The role of a jury in a will contest is the same as that in civil trials in a court of law and the same principles apply. Fowler v. Fisher, 353 So.2d 497 (Miss.1977). When considering motions for directed verdicts, the trial judge must accept as true all facts and inferences arising therefrom in favor of the party against whom a motion is filed, disregard any evidence introduced by the opposite party in conflict therewith, and, if such evidence will support a verdict for the party against whom it is filed, the trial judge must overrule such motion. Claiborne v. Greer, 354 So.2d 1109 (Miss.1978), Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975). Under the facts of this case, we are of the opinion that the proof for the contestants raised a question for the jury to determine as to testamentary capacity and undue influence, that the issues should have been submitted to the jury and that the lower court erred in sustaining the motion for a directed verdict. The’judgment of the lower court, therefore, is reversed and the case is remanded for a new trial on the merits.

Appellees have cross-appealed contending that the lower court erred in sustaining appellants’ objections to the introduction into evidence of the sworn answers filed by appellees. In view of our decision on the direct appeal, the case is affirmed on cross-appeal.

REVERSED AND REMANDED ON DIRECT APPEAL; AFFIRMED ON CROSS-APPEAL.

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

      . Same as Miss.Code Ann. § 1281 (1942).


text:
    Vaughn LAIRD v. STATE of Mississippi.
    No. 52990.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Frank H. Coxwell, III, Merrida P. Cox-well, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson for appellee.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Vaughn Laird was convicted in the Circuit Court of the First Judicial District, Hinds County, Honorable Reuben M. Anderson, Special Judge, presiding, on a charge of forgery and was sentenced to fifteen years with the Department of Corrections, under the habitual offender statute, and he has appealed to this Court.

The appellant contends that the court erred in declining to enter a directed verdict of not guilty for the reason that the state failed to prove a false making of the instrument and fraudulent intent.

At the conclusion of the evidence offered on behalf of the state, appellant rested his case. The evidence favorable to the state indicates that, on May 28, 1980, a check in the amount of $356.44, payable to Vaughn Laird, drawn on the account of Central Mississippi Chapter of the American Red Cross in The Mississippi Bank, and signed by Robert Winn and Eddie Williams, as makers, was presented to Micky’s Fairway Supermarket in Jackson, Mississippi. The instrument was indorsed in the presence of Mr. Hardab Sood, an employee of Micky’s Fairway Supermarket, was cashed by him, and was returned to the store later by The Mississippi Bank as a forgery.

Appellant was arrested by Officer M. S. Rochester of the Jackson Police Department, he was advised of his Miranda rights, and, when the check was shown to him, appellant looked at the indorsement and said that it looked like his handwriting. He was booked for forgery and subsequently, Detective C. J. Husbands let him inspect the check. Appellant told Detective Husbands that it looked like his handwriting and it looked like he was on his way back to Parchman. Later, while in jail, appellant asked to see Officer Rochester and told him that “he had come into possession of the check because his wife brought the check home with her.”

Mr. Tom Packer, a questioned document examiner for the Jackson Crime Laboratory, testified that he compared the check with known handwriting specimens of appellant and that the indorsement on the forged instrument was that of appellant. He was unable to determine the author of the writing on the face of the check. Miss Frances Simmons of the Central Mississippi Chapter of the American Red Cross testified that the instrument was a forgery, that no authorization had been given for the drawing of the check, and that the signatures of Robert Winn and Eddie Williams were false.

The elements of forgery are stated in Dunson v. State, 223 Miss. 551, 78 So.2d 580 (1955), as follows:

In State v. Eliis, 161 Miss 361, 137 So. 102, this Court recognized that the three essential elements necessary to constitute the crime of forgery are: “(1) there must be a false making or other alteration of some instrument in writing; (2) there must be a fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud.” According to the allegations of the indictment, the writing here involved was capable of effecting a fraud, and was altered with a fraudulent intent (223 Miss. at 553, 78 So.2d at 581-582)

Appellant admitted that the in-dorsement on the forged instrument fs his signature and the handwriting expert corroborated that testimony. However, appellant argues that the prosecution did not prove appellant forged the writing or signatures of the makers on the face of the check and, therefore, should have been granted a directed verdict. Appellant stated that he received possession of the check from his wife, who brought it home with her. Possession of a forged check by an accused, which he claims as a payee, is prima facie evidence that he either forged the instrument or procured it to be forged. Green v. State, 152 Miss. 282, 119 So. 808 (1929); 36 Am.Jur.2d Forgery § 44, p. 706 (1968). Appellant offered no evidence to rebut the prima facie case of forgery and did not attempt to overcome the presumption resulting from his possession of the forged instrument. We are of the opinion that the evidence was sufficient to support the guilty verdict returned by the jury. Saik v. State, 387 So.2d 751 (Miss.1980); Warn v. State, 349 So.2d 1055 (Miss.1977); Redwine v. State, 149 Miss. 741, 115 So. 889 (1928).

AFFIRMED.

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

      . Appellant was charged with forgery. As a general rule, it is easier for the state to prove the crime of uttering a forged instrument as opposed to forgery. Here, a more simple case of uttering a forged instrument could have been proven.


author: SUGG, Justice,

text:
    Gerald David MALONE v. STATE of Mississippi.
    No. 52929.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Harry L. Kelley, Jackson, Stanford Young, Thomas McDonough, Waynesboro, for appellant.
    Bill Allain, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Defendant was indicted by a grand jury in the Second District of Jones County for the unlawful sale of amphetamines in violation of the Uniform Controlled Substances Law of 1971. The indictment also charged that defendant was an habitual offender under section 99-19-81 Mississippi Code Annotated (1972). The jury found defendant guilty of the sale of amphetamines. Following the jury verdict a separate hearing was held under Rule 6.04 of the Uniform Criminal Rules of Circuit Court Practice and defendant was sentenced under sections 99-19-81 and 41-29-139(c)(3) Mississippi Code Annotated (Supp.1978) to 20 years imprisonment and fined $30,000. The order of sentence provided that the sentence should not be reduced or suspended nor the defendant be eligible for parole or probation.

The only assignment of error is that the court erred in allowing into evidence a uniform arrest ticket to show a prior conviction of a crime used to impeach the testimony of the defendant.

Defendant testified in his own behalf, and on cross-examination the following questions and answers appear:

Q. Are you the same Gerald David Malone that on April 1, 1978, paid a fine in the Town Court of Soso, Mississippi for possession of a controlled substance?
A. I paid a fine for improper muffler, improper — no, speeding and improper muffler and evading an officer, and the fellow wrote me out a ticket that night on a piece of paper, and I have a receipt. It would take some time to find it. I had borrowed the car and I didn’t know — I think it was an improper or expired tag, and I had borrowed the car that night and it belonged to Mr. J. D. Little, and I had had it about 20 minutes when they stopped me.
Q. You talking about him writing you a ticket, and is that a copy of the ticket he wrote you out that night?
A. No, sir.
MR. YOUNG: May I see that?
A. No, sir, it was on a piece of notebook paper.
Q. And you were never issued an Uniform Arrest Citation?
A. No, sir.
Q. Just the policeman at Soso stopped you and wrote you out something on a little sheet of paper, and is that what you are telling the jury?
A. Yes, sir.
Q. And they didn’t give you a ticket?
A. No, sir. He wrote it on a piece of notebook paper.
Q. And you never did receive a copy of this?
A. No, sir.
Q. But your date of birth is January 11, 1948?
A. Yes, sir.
Q. And you were driving a 1969 Pontiac owned by a Mr. Little?
A. Yes, sir. It was about 9:30 at night when he stopped me, and he said if I wanted to post an $80.00 bond that would be fine, you know, for what I did for the ticket, and he wrote — all he had with him was a little piece of paper and he wrote me a receipt right then on a piece of notebook paper.
Q. The policeman that stopped you wrote you a receipt on a piece of notebook paper?
A. Yes, sir.
Q. And you gave him $80.00 in cash and drove off?
A. Yes, sir.
Q. And you were not charged with possession of a controlled substance?
A. No, sir.
Q. And you paid the cash fine and forfeited your bond?
A. Yes, sir.
Q. And you say the cash fine you paid was not for possession of a controlled substance?
A. No, sir.
MR. SMITH: I have no further questions.

The Mayor of Soso was called as a rebuttal witness and, over objection, a uniform arrest ticket was introduced in evidence. The ticket was dated March 21, 1978, and notified defendant to appear before the Mayor of Soso on April 1, 1978, “To answer for violating the laws of the Town of Soso (1) PUB Drunk (2) POS. of Cont. Sub. (3) EXP. D.L.” On direct examination the Mayor testified that a fine of $80 was levied for the three offenses. On cross-examination the Mayor did not remember whether defendant posted bond and forfeited it or whether he appeared in court and was tried. The Mayor was asked if he had a docket that would show the conviction and his answer was:

No, sir, we have a docket — just a regular docket. —a Mayor’s Docket, but evidently he . was not locked up on a charge like this.

A docket showing that defendant had been convicted of the possession of a controlled substance was not introduced, neither was a certified copy of a judgment of conviction introduced. Apparently the charges against defendant in the Town of Soso were disposed of under section 21-23-17 Mississippi Code Annotated (1972) which follows:

In all cases involving charges of violations of the traffic laws or ordinances of a municipality having a police court, when the person charged desires to waive a trial and not appear in court and defend the charge, the amount of the fine may be agreed upon in advance by the person charged and the traffic violations department of such municipality. The fine may be paid in advancé without a court trial provided the person charged is notified by language plainly printed on the ticket or summons issued to him advising him of his rights to a trial and the consequences of a voluntary payment of such fine. In cases where formal charges have been made and the person charged has been notified to appear in court at a certain date and time, such traffic departments are authorized to accept a cash bond not to exceed the amount of the fine and costs conditioned upon the appearance of such person at such time and, upon his failure to appear, such cash bond shall be forfeited and a fine entered in an amount not to exceed the amount of such bond. In the event a person so charged prepays his fine after notice of his rights, this shall constitute a waiver of formal charge, arraignment, and trial and in such cases and in cases of a bond forfeiture the payment of such fine or the forfeiture of such bond shall be tantamount to and shall constitute a conviction of such person for the offense stated in the ticket or summons and such conviction shall be reported to the commissioner of public safety as required by law. It shall not be necessary to enter such cases in the police court docket provided a permanent record is kept of the name of the person charged, the tag number of the vehicle involved, the ticket number issued to such person, the offense charged and the amount of the fine paid by such person.

Section 21-23-17 applies only to charges for violating traffic laws and the procedure prescribed may not be used in prosecuting a charge of public drunkenness or possession of a controlled substance. The last sentence of the section permits disposition of traffic cases without the necessity of entering such cases in the police court docket provided a permanent record is kept as required. However, in all criminal cases the usual procedure for prosecuting and docketing criminal cases must be followed. The uniform arrest ticket was not evidence of a conviction of defendant for the sale of controlled substance in the Town of Soso. It was error to permit the introduction of the uniform arrest ticket in an attempt to show that defendant had been convicted of possession of a controlled substance.

We hold that impeaching defendant by the use of incompetent evidence was reversible error in this case because the credibility of the defendant was an important fact to be considered by the jury in this case.

Earl Plymale, an undercover agent for the Sheriff of Jones County, testified that he purchased three amphetamine capsules from the defendant on August 12, 1979, for $15. Defendant denied that he sold any capsules to Officer Plymale so the jury was faced with determining which of the two witnesses was telling the truth. Officer Plymale was corroborated to some extent but he and the defendant were the only two present when Plymale claimed he bought amphetamines from the defendant. This incompetent evidence was particularly damaging to the defendant and no doubt was an important factor in the minds of the jury when it was called upon to determine which of the two was telling the truth. It was highly prejudicial in this case because defendant was charged with selling a controlled substance and the incompetent evidence showed he had been convicted of possession of a controlled substance. We therefore decline to apply the harmless error rule.

Defendant also suggests in his brief that it is questionable whether there is such a crime as possession of a controlled substance. We do not address this question because we do not have a proper record before us. The question should be considered by the trial court upon remand.

We direct the attention of the parties and the court to section 21-23-7 Mississippi Code Annotated (1972) which provides in part:

He shall also be ex-officio justice of the peace in all cases arising within the corporate limits of the municipality and shall discharge the duties thereof. In all cases he shall keep separate dockets for criminal matters and for his proceedings as ex-officio justice of the peace.

On retrial if the state relies on the conviction of defendant for possession of a controlled substance in the Town of Soso, evidence should be offered to show whether the Mayor was sitting as a police justice or as an ex-officio justice of the peace, and the judgment of conviction, if any, should be shown by introduction of the proper docket or certified copy of the judgment.

REVERSED AND REMANDED.

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

      . Section 21-23-17 was amended by Laws of 1979, Chapter 401, Section 10, effective from and after July 1, 1979. The statute quoted is the statute in existence before the 1979 amendment.

      . This sentence was repealed by Laws of 1979, Chapter 401, Section 4, effective July 1, 1979. Under the amended statute Municipal Court Judges are no longer ex-officio justices of the peace.


text:
    Daniel James BYRD v. STATE of Mississippi.
    No. 52976.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Liebling & Liebling, Cynthia Liebling, Gautier, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

REVERSED AND REMANDED.

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


text:
    Bobby Royce ANDERSON v. STATE of Mississippi.
    No. 52958.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Polly J. Covington, Quitman, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Clarke County; Henry W. Palmer, Judge.

REVERSED AND APPELLANT DISCHARGED.

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