author: BOWLING, Justice, for the Court:

text:
    Robert Lee WOODS v. STATE of Mississippi.
    No. 52346.
    Supreme Court of Mississippi.
    Jan. 14, 1981.
    Rehearing Denied March 4, 1981.

      H. Lee Bailey, Jr., Bailey & Bailey, Wino-na, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice, for the Court:

This multiple indictment and conviction arose in the Circuit Court of Montgomery County. Appellant, Robert Lee Woods, was charged in one indictment consisting of three counts: Burglary, armed robbery and kidnapping. The indictment further charged that as appellant had two prior felony convictions on separate charges and had received sentences of more than one year under each, he should receive an enhanced sentence as a habitual criminal under Mississippi Code Annotated section 99-19-81 (Supp.).

The trial resulted in the conviction of appellant under all three counts of the indictment. The jury failed to agree on punishment under the armed robbery and kidnapping charges. The trial judge then sentenced appellant to a term of fifteen years with the Department of Corrections under the burglary conviction, and two life sentences for the armed robbery and kidnapping convictions.

Appellant alleges a number of errors which, he contends, require a reversal of the cause. We shall hereafter discuss those alleged errors as presented. First, however, we should get the case in perspective as it was received by the jury.

The principal witness for the prosecution was one Carnell Ward, a fifty-nine year old male. He testified that on January 6, 1980, at about two o’clock P.M., he was not feeling well and was in bed at his home. The appellant, with whom Ward was acquainted, came to the door and demanded entrance. Ward told him that he could not enter, whereupon appellant kicked in the door which was locked and entered Ward’s room. Appellant produced a silver-plated 38-caliber pistol and demanded Ward’s money. The latter told appellant that all his money was in the pocket of his pants that were on a chair near the bed. Appellant went through the pockets of the pants and took the sum of $13.

According to Ward, appellant then demanded that Ward dress and go with him in Ward’s car. Appellant dragged him into the car, cautioning him to say nothing and to play like nothing was happening during the course of the trip they were about to take. Appellant had secured the car keys from Ward’s pocket. Ward testified that he was required to drive and that they first went to the home of a Mrs. Robertson. Ward described in detail the route taken and the places they passed on the way. At the Robertson house, appellant bought some corn whiskey and drank some of it. He made Ward drink some of the liquor. Ward’s money taken by appellant was used for the purchase. Ward testified that appellant hit him in the chest and made him take a drink.

After leaving the Robertson house, appellant required Ward to drive for a distance, after which appellant took over the driving saying that Ward was not “driving right.” Appellant then drove several miles in reckless fashion before permitting Ward to again drive the vehicle. Thereafter, appellant ordered Ward to drive to “The Pines,” a local beer joint. On the way, Ward was told to turn right onto a dirt road near a white church. Appellant needed to relieve himself, which he did. According to Ward, appellant then returned to the car and forced Ward to commit what Ward described as an “act.” At appellant’s demand, Ward then drove to The Pines where they got out of the car and entered. Shortly before reaching The Pines, appellant made Ward give him his watch. After arriving at The Pines, appellant took the car keys from Ward. Ward testified that they both got out on the driver’s side of the car, with appellant cautioning Ward not to talk while in The Pines. This establishment was located about ten miles from Winona. Appellant testified that a man named Edwards operated The Pines and was at the bar. Appellant bought beer for himself and Ward. The two men then left The Pines and got back in the car, both men again entering from the driver’s side. Appellant, who had the keys, placed them in the ignition and ordered Ward to drive. During the trip back to Winona, appellant cursed and threatened Ward for not having any other money.

Ward testified that when they reached the Winona Junior Food Mart, he stopped the car quickly, jumped out leaving the keys behind, and ran into the store. He then attempted to warn the store operator that appellant had instructed him to get some money from the store. Ward testified that he told the woman in the store to lock the door as appellant intended to rob them. Appellant then came in the store, grabbed Ward and tried to pull him outside. As he was being dragged towards the door, Ward grabbed a gum machine and appellant was unable to pull him loose. When one of the store employees announced that she was calling the police, appellant left the store and was last seen leaving the lot in a car with someone else. According to Ward, he and appellant reached the Junior Food Mart between 7:30 and 8:00 o’clock P.M., after having been together, as hereinbefore discussed, since shortly after two o’clock P.M.

The prosecution introduced testimony from witness J. L. Edwards, who stated that he operated “The Hardship Club,” commonly known as “The Pines.” He knew both appellant and Ward and had seen them in his establishment on the afternoon in question between 4:30 and 5 o’clock P.M. According to Edwards, Ward was seated and appellant was standing close by him. Woods ordered a quart of beer and drank it. Edwards testified that the two men left together.

The prosecution then introduced Thelma Bludsaw, who was working at the Junior Food Mart at the time in question. She knew Ward as he had been in the store many times. She testified that he entered the store between 7:30 and 8:00 o’clock P.M., and was acting very differently from the other times she had seen him. He ran up to her, stating that “you are fixing to be robbed.” She testified that he then ran back toward the cooler “like he was trying to run away” and was “looking wild and acting funny.” According to Bludsaw, another man came in and told Ward to “come on and let’s go.”; that he was going out of there or was going to be pulled out. Ward grabbed the gum machine near the door and would not release it. Ward then announced he would not let go of the machine until someone called the police. The other man then turned Ward loose and left. Ward remained in the store holding onto the gum machine until the police arrived. Bludsaw did not know the other man involved but identified him at the trial as being the appellant.

The prosecution also introduced John Welch, the night manager of the Junior Food Mart, whose testimony was essentially the same as the previous witness.

Appellant’s defense was an alibi. He first placed on the stand a witness named Odis Merritt who owned and operated a business known as “Last Chance.” He was asked whether or not appellant was in his place of business on January 6,1980, and he promptly stated that appellant was in his place of business but he could not say it was on January 6. Merritt testified that whatever day it was, appellant and one C. W. Wright were together. Upon being examined by appellant’s attorney as a surprise witness, Merritt stated that appellant was the one who told him the date was the 6th. The witness testified that on the occasion in question appellant came to the cafe about 11 o’clock A.M. and stayed until in the night time.

Appellant Woods testified in his own behalf. He was 26 years of age and stated that he had “heard talk” of Carnell Ward. He testified that on January 6, 1980, he arrived at Merritt’s Cafe about 8:30 in the morning and stayed there until 6:30 or 7:00 that evening and that Merritt and one C. W. Wright were present. He testified that he first saw Ward around 6:30 or 7:00 that evening at the Junior Food Mart, and that Ward was acting “crazy.” Appellant contended that he had attempted to remove Ward from the store as he was bothering the store employees. Appellant maintained that he had found Ward’s watch, introduced into evidence, by the side of the road near his girl friend’s house on January 7th.

Did the lower court err in denying appellant’s motion for a continuance?

The day prior to trial, appellant’s attorney filed a written motion for a continuance, alleging that C. W. Wright, a prospective witness for appellant, was a necessary witness for appellant’s defense; that due diligence had been used to procure the presence of Wright but that he was in the University Hospital in Jackson, Mississippi. The only thing in the affidavit for continuance about Wright’s testimony was that “he has information regarding the whereabouts of the defendant on the date in question.” On the morning of the trial date, appellant’s attorney renewed the continuance motion orally. In chambers, it was stated to the trial court that Wright was with defendant on the date in question. There was another oral motion for a continuance. In overruling the motion, the court stated that there was nothing before the court to show whether or not Wright would ever be available to testify as a witness in the cause and overruled the motion for that reason.

We have held repeatedly that an application for a continuance is addressed to the sound discretion of the trial court unless that discretion is abused and the defendant is prejudiced thereby. Fermo v. State, 370 So.2d 930 (Miss.1979); McClendon v. State, 335 So.2d 887 (Miss.1976); Sample v. State, 320 So.2d 801 (Miss.1975).

In Burrill v. State, 328 So.2d 334 (Miss. 1976), the statutory procedure to follow in requesting continuances was discussed fully as follows:

The absence of certain out-of-state witnesses is urged as requiring reversal. Facts expected to be proved by the absent witnesses were not set out nor were the names and addresses of such witnesses set out in an affidavit. Nor was there an affidavit containing a statement that the witnesses were not absent by the consent or procurement of the accused. In King v. State, 251 Miss. 161, 168 So.2d 637 (1964), the proper procedure is outlined as follows:
“In view of the frequency of these applications we deem it advisable to repeat what has been before substantially said as to the correct course to be pursued by a defendant who applies for a continuance. To begin with he should promptly issue summonses for all witnesses who may be material for his defense; for any witness who has been served with process and who has failed to appear as commanded he should ask for an attachment which will never be refused by the court; in capital cases he should apply for a continuance before the venire is drawn, setting out in his affidavit the names and residences of the absent witnesses, the facts expected to be proved by them, and should also show to the court what steps have been taken to secure their attendance; he should negative the idea that they are absent with his consent or procurement, and if any reasons are known to him why they are not present, these should be stated.
“If the court declines to grant the continuance he should sue out the proper process for them, and when the case is called for trial should renew his application, make such changes in his affidavit as the conditions then existing require. If the continuance is still refused, he should with unremitting diligence seek to secure their attendance pending the trial by the continued use of the process of the court; if tried and convicted he should still persist in his efforts to enforce their attendance before the expiration of the term, and on his motion for a new trial present them to the court for examination; if, with all of his efforts, he is unable to have the witnesses personally present, he should, if practicable, secure their ex parte affidavits, which should be presented for the consideration of the court, which, on the motion for a new trial, will review the whole case and correct any error prejudicial to the defendant which may appear in the proceeding.”

The statutory requirements for an application for a continuance are set out in Mississippi Code Annotated section 99-15-29 (1972), which reads as follows:

On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done. The court may grant or deny a continuance, in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine and may introduce evidence by affidavit or otherwise for the purpose of showing to the court that a continuance should be denied. No application for a continuance shall be considered in the absence of the party making the affidavit, unless his absence be accounted for to the satisfaction of the court. A denial of the continuance shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom.

Considering the foregoing discussion of the evidence, this Court certainly cannot say that it is satisfied that injustice resulted from a refusal to continue the cause. The only information received by the court by affidavit or otherwise was that Wright, the missing witness, knew where appellant had been the day of the alleged incident. The lower court correctly overruled the motion for continuance.

Was the court in error in overruling defendant’s request for a directed verdict and/or peremptory instruction?

Appellant contends that the kidnapping count of the indictment was not proved by the state because there was no evidence that the appellant abducted Ward with the intent to secretly confine him. The statute under which this count of the indictment was returned is Mississippi Code Annotated section 97-3-53 (Supp.), which reads as follows:

Any person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned against his or her will, or shall without lawful authority forcibly seize, inveigle or kidnap any child under the age of ten (10) years and secretly confine such child against the will of the parents or guardian or person having the lawful custody of such child, shall, upon conviction, be imprisoned for life in the state penitentiary if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the state penitentiary.
This section shall not be held to repeal, modify or amend any other criminal statute of this state.

Appellant advances the theory that as the state’s evidence showed the two men visiting public places, Ward was not being “secretly” confined. We first note that the entire matter consumed at least between five and six hours and the evidence indicates that they were in the two public places for only a short period of time. The testimony from Ward clearly indicates that whatever was done during the hours involved was forced upon him by threats from appellant who had a gun. Except for the stops, including the stop near the church, the entire affair took place in Ward’s automobile. In Johnson v. State, 288 So.2d 842 (Miss.1974), we said the following:

Johnson now contends that the verdict finding him guilty of kidnapping was neither in accord with the evidence nor the law. He argues that it was not shown that, in abducting Dillon, he did so “with intent to cause such person (Dillon) to be secretly confined or imprisoned against his or her will.”
In 51 C.J.S. Kidnapping § 171(7) (1967) states:
“A person may be secretly confined in a motor vehicle while it is in motion on the highways of the state or parked in a secluded area.”
When one is forced at gun point to enter an automobile, and while confined therein is driven away against his will from a place where he has a right to be, along a route and to a destination unknown to his friends and acquaintances, he is, within the meaning of the statute, “secretly confined and imprisoned.”
The principles announced in McGuire v. State, 231 Miss. 375, 95 So.2d 537 (1957) support this view and contentions similar to those now advanced by appellant were rejected.

Also see People v. Masterson, 79 Ill.App.2d 117, 223 N.E.2d 252 (1967); Jackson v. State, 540 S.W.2d 275 (Tenn.Cr.App.1976).

It is noted that the statute authorizes conviction in the event the accused should forceably seize and confine any person with the intent to cause such person to be “secretly confined or imprisoned against his or her will.” (Emphasis ours). There is no merit to this assignment of error.

Was it error to allow Ward’s watch to be introduced in evidence?

Ward testified that during the course of the events in question appellant took his wristwatch. Appellant contends that the allowance of this evidence was erroneous as this act was not listed in the indictment and constituted a separate offense. In the first place, this act was part of the res gestae of the entire time involved in the kidnapping charge. It was an inseparable part of the entire picture and the main transaction. See McCormick v. State, 159 Miss. 610, 132 So. 757 (1931). Furthermore, Ward testified regarding the taking of the watch without objection being made. There is no merit in this assignment of error.

Did the lower court err in allowing Ward to testify that he was forced to commit an “act”?

As hereinbefore set out, Ward testified that at one point during the kidnapping he was forced to commit an “act” on appellant’s person. Appellant objects to this testimony as it was not listed in the indictment.

By implication, the act was an “unnatural sexual act” and appellant contends this was highly inflammatory and prejudicial. It should be reiterated that the only testimony that Ward gave was that the occurrence was “an act.” When the state attempted to develop that testimony further, an objection was sustained thereto by the trial court. There was no request for the court to instruct the jury to disregard any testimony already heard and no motion for a mistrial. See Clanton v. State, 279 So.2d 599 (Miss.1973); Cittadino v. State, 199 Miss. 235, 24 So.2d 93 (1945). Furthermore, in Blackwell v. State, 44 So.2d 409 (Miss.1950), the Court stated:

It is now well settled that when anything transpires during the trial that would tend to prejudice the rights of defendant, he cannot wait and take his chances with the jury on a favorable verdict and then obtain a reversal of the cause in this Court because of such error, but he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such nature as would entitle him to a mistrial.

Eegardless of the actions of the court or the parties, as stated above, the testimony was not inadmissible. In Gray v. State, 351 So.2d 1342 (Miss.1977), the Court said:

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

There is no merit to this assignment of error.

Should the cause be remanded for resen-tencing by the trial court.

The jury returned three separate verdicts, one under each count of the indictment. The jury was unable, however, to agree on the penalty to be adjudged under the armed robbery and kidnapping charges. The lower court announced that it was therefore proceeding under Code section 99-19-81 as the indictment charged and the evidence confirmed that appellant had been convicted twice previously of felonies with separate sentences of more than one year. Appellant was sentenced to serve fifteen (15) years with the Department of Corrections under the burglary verdict and a life sentence under each of the armed robbery and kidnapping verdicts. This statute reads as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

It appears that the lower court in imposing the life sentence for each of the convictions for armed robbery and kidnapping was considering that sentence as “the maximum term of imprisonment prescribed for such felony” as set out in the above quoted statute. In this Court’s opinion, the maximum term provided for in the statute is the maximum term that may be given by the trial judge and not by the jury when the jury fails to agree thereon. The kidnapping charge was pursuant to Code section 97-3-53, which provides that in the event the jury does not adjudicate the accused to serve a life sentence, the maximum that may be fixed by the trial judge is thirty years.

Under the armed robbery conviction, we have held that in the event the jury finds guilt but is unable to arrive at punishment, the lower court is required to consider as a maximum punishment only the number of years that reasonably would be calculated to be less than life for that particular accused. See Stewart v. State, 372 So.2d 257 (Miss.1979).

Therefore, we hold that it is necessary to remand the cause for resentencing pursuant to the above set out principles. The judgment of the lower court on the three convictions does not state whether the sentences are to run concurrently or consecutively. Code section 99-19-21 (1972) reads as follows:

When a person is sentenced to imprisonment on two or more convictions, the imprisonment on the second, or each subsequent conviction, shall commence at the termination of the imprisonment for the preceding conviction, and the sentence ought to so specify. Provided, however, that when a person is convicted at the same term of a circuit or county court of more than one offense, the judge of such court may impose sentences on such convictions to run concurrently.
All orders imposing sentences heretofore to run concurrently, if so ordered, are hereby validated and confirmed. (Emphasis ours).

We realize it is probable that in this particular case the lower court relied on the first part of the above statute and intended the sentences to run consecutively. We believe, however, and earnestly urge trial courts to specify in the sentencing orders whether two or more sentences are to run consecutively or concurrently.

There are other assignments of error propounded by appellant, none of which merit discussion here. It follows that the convictions of appellant should be and they are affirmed and the cause is remanded for resentencing consistent with this opinion.

AFFIRMED AND REMANDED FOR RESENTENCING.

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


source: Caselaw Access Project

license: Public Domain

text:
    Larry MILLER v. STATE of Mississippi.
    No. 52411.
    Supreme Court of Mississippi.
    Jan. 21, 1981.
    Rehearing Denied March 4, 1981.
    David G. Hill, Oxford, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lafayette County; W. W. Brown, Judge.

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

AFFIRMED.


text:
    William A. WEINISCHKE and Kathryn Gray Weinischke v. REBEL REALTY CO.
    No. 52360.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Rehearing Denied March 4, 1981.
   Appeal from Circuit Court, Lafayette County; W. W. Brown, Judge.

Mary Ann Connell, Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Oxford, for appellants.

Russell Blair, T. H. Freeland, III, Free-land & Gafford, Oxford, for appellee.

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

AFFIRMED.


text:
    David L. PERKINS v. Jerry T. JOHNSTON.
    No. 52394.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Rehearing Denied March 4, 1981.
    Jerry L. Mills, Johnson & Mills, Clinton, for appellant.
    Michael P. Younger, Johnston, Adams & Younger, Brandon, for appellee.
   Appeal from Circuit Court, Hinds County; Charles Barber, Judge.

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

AFFIRMED.


text:
    Charles RUSSELL v. STATE of Mississippi.
    No. 52396.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Rehearing Denied March 4, 1981.
    Perry E. Brown, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED.

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


text:
    George LOWE v. STATE of Mississippi.
    No. 52451.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    Rehearing Denied March 4, 1981.
    Davey L. Tucker, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

REVERSED AS TO GRAND LARCENY; AFFIRMED AS TO PETIT LARCENY; AND REMANDED FOR RESEN-TENCING.

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


text:
    Carlton SMITH v. STATE of Mississippi.
    No. 52376.
    Supreme Court of Mississippi.
    Feb. 11, 1981.
    Rehearing Denied March 4, 1981.
    Edwin H. Roberts, Jr., Roberts & Clisby, T. H. Freeland, III, Freeland & Gafford, Oxford, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, Bobby Williams, Asst. Dist. Atty., Hernando, for appellee.
   Appeal from Circuit Court, Panola County; Andrew C. Baker, Judge.

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

AFFIRMED.


text:
    Shirley Evans PENROW v. Hoyt WILLIAMS, Robert E. Nader, d/b/a Williams, Nader & Co.
    No. 52455.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Rehearing Denied March 4, 1981.
    Paul D. Snow, III, Jackson, for appellant.
    Richard L. Forman, Thomas E. Williams, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

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

AFFIRMED.


author: SUGG, Justice,

text:
    PREFERRED RISK MUTUAL INSURANCE CO. v. Jessie C. COURTNEY et al.
    No. 52259.
    Supreme Court of Mississippi.
    Feb. 18, 1981.

      George E. Dent, Aultman & Aultman, Hattiesburg, for appellant.
    D. Gary Sutherland, Joseph O’Connell, Heidelberg, Sutherland & McKenzie, Hat-tiesburg, for appellees.
    Before SMITH, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

The question in this case is, may an insurance company recover from a tort feasor, under a subrogation clause in its policy, the amount paid its insured for medical expenses and loss of income due under the terms of the policy; when, (1) the insurance company did not secure an assignment from its insured for the amounts paid, (2) the insured filed suit against the tort feasor, (3) the insurance company notified the tort feasor of its claim of subrogation after the suit was filed, and (4) the tort feasor settled with insured after notice of the subrogation claim? We answer the question no for the reasons hereafter stated in the opinion.

The complainant, Preferred Risk Mutual Insurance Company, filed an amended bill of complaint against defendants, Mrs. Lorene Farris, her minor son, Frank Farris, and Government Employees Insurance Company to recover $4,525.21 paid its insured for medical expenses and loss of income under the terms of its policy. An interlocutory appeal by complainant from a decree sustaining defendants’ demurrer was dismissed on the ground the appeal was improvidently granted. Upon remand, the trial court entered a decree confirming its earlier decree and dismissed the defendants with prejudice. Complainant has appealed from this final decree.

The amended bill of complaint also named as defendants Jessie C. Courtney, Mrs. Imogene L. Courtney, Mrs. Sherry Warrick Courtney, Jessie Wayne Courtney, Ruben Warrick and Mrs. Ruby Hancock Warrick. Complainant alleged it had paid Mrs. Imogene L. Courtney and Sherry War-rick Courtney $4,525.21 under the medical payment and loss of income provisions of its policy and sought recovery from these six defendants under the trust agreement provisions of its policy.

After the trial court sustained the general demurrer of the three defendants as noted above, complainant dismissed its suit against the six remaining defendants. Any claim of complainant against these defendants is not an issue here.

Complainant alleged in its amended bill of complaint that it issued a standard automobile insurance policy to Jessie Courtney on April 2, 1973, which contained the following provisions:

COVERAGE C-l. AUTO-MATIC PAY 'TO PAY:
MEDICAL EXPENSE BENEFITS
All reasonable expenses resulting from bodily injury, sickness or disease, including death resulting therefrom caused by accident and incurred within one year from the date of accident, for necessary medical, surgical, x-ray and dental services, including prosthetic devices and necessary ambulance, hospital, professional nursing and funeral services, subject to the limits stated below under Limits of Liability.
LOSS OF INCOME BENEFITS
Eighty-five (85) percent of loss of income resulting from bodily injury, sickness or disease, caused by accident, for the period of continuous total disability beginning the fifteenth day after the accident and terminating one year and fourteen days from the date of the accident, or at death, whichever occurs first, not in excess of $750.00 per month.
PERSONS INSURED
Division 1. To or for the named insured and each relative so injured while occupying or through being struck by an automobile.
Division 2. To or for any other person so injured while occupying:
(a)the owned automobile while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured, or
SUBROGATION. In any event of any payment under Coverage C-l of this policy, the company shall be subrogated to all the rights of recovery therefor which the injured person or anyone receiving such payment may have against any person or organization and such person shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. Such person shall do nothing after loss to prejudice such rights.
TRUST AGREEMENT. In the event of payment to any person under Coverage C-l
(a) the company shall be entitled, to the extent of such payment, to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury, sickness, disease or death because of which such payment is made;
(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under this part;
(c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights;
(d) if requested in writing by the company, such person shall take, through any representative designated by the company, such action as may be necessary or appropriate to recover such payment as damages from such other person or organization, such action to be taken in the name of such person; in the event of a recovery, the company shall be reimbursed out of such recovery for expenses, costs and attorneys’ fees incurred by it in connection therewith;
(e) such person shall execute and deliver to the company such instruments and papers as may be appropriate to secure the rights and obligations of such person and the company established by this provision.

Complainant also alleged that Wayne Courtney, the son of Jessie Courtney, was driving his father’s insured automobile on April 8, 1973; that Wayne’s wife, Mrs. Sherry Warrick Courtney, and mother, Mrs. Imogene L. Courtney were passengers in the automobile; and that Frank Farris, the son of Mrs. Lorene Farris, was driving his mother’s automobile and negligently collided with the automobile being driven by Wayne Courtney resulting in serious personal injury to the two passengers in the Courtney automobile. Mrs. Farris had a liability policy issued by Governmental Employees Insurance Company covering her automobile.

Complainant attached, as exhibits to its amended bill, copies of declarations filed in the circuit court by Mrs. Imogene L. Courtney and Mrs. Sherry Warrick Courtney against Mrs. Lorene Farris and her son Frank Farris. Mrs. Imogene L. Courtney sued for medical expenses, loss of income, pain and suffering and property damages. She sought judgment for actual damages in the sum of $20,000 and punitive damages in the sum of $5,000. Mrs. Sherry Warrick Courtney sued for medical expenses, loss of earning capacity, and pain and suffering. She sought recovery of actual damages in the sum of $15,000 and punitive damages in the sum of $5,000.

Complainant alleged it notified all defendants of its subrogation rights under its policy after the suits were filed but before the defendants in the circuit court suits settled with the plaintiffs. Complainant attached as an exhibit to the amended bill a general release signed by Mrs. Imogene L. Courtney and her husband, Jessie C. Courtney, releasing the defendants from all claims on account of the collision for $6,000. Complainant also attached as an exhibit a general release signed by Mrs. Sherry War-rick Courtney, her husband Wayne Courtney, and her parents, Ruben Warrick and Mrs. Ruby Hancock Warrick releasing defendants from all claims on account of the collision for $5,000.

Complainant contends that the defendants are liable to it on the theory that a tort feasor who settles with an injured party after notice of subrogation by the injured party’s insurance carrier is liable to the insurance carrier for the amount the tort feasor pays to the injured party to the extent of the insurer’s payment even though the tort feasor obtains a general release from the injured parties.

There is a conflict of authority in states that have considered the rights of an insurer to recover from a tort feasor on the theory of subrogation. The conclusions reached by the courts in other states may be summarized as follows.

1.If a tort feasor obtains a release from the insured with knowledge that the insured has been indemnified by his insurer, such release does not bar the right of subro-gation of the insurer.

2. Although a tort feasor settles with the insured and obtains a general release after notice that the insurer has paid the insured in accord with its policy, such settlement and release bars the insurer’s action against the tort feasor for reimbursement. The courts taking this position reason that the subrogation rights of the insurer are best protected by blaming the insured instead of the tort feasor, who is a stranger to the contract.

3. An insurer has no direct cause of action against a tort feasor for payments made under its policy because its claim for recovery is based solely upon a contractual liability owed by the insurer to its insured.

4. An insurer has no cause of action against a tort feasor because claims of personal injuries are not assignable at common law.

See Couch on Insurance 2d § 61:197-198 (1966), Annot. 19 A.L.R.3d 1054 (1968); Annot., 92 A.L.R.2d 102 (1963); Annot., 78 A.L.R.2d 822 (1961), and cases cited.

It is not necessary for us to determine which of the above positions we consider is correct because we are of the opinion that complainant is not entitled to recover under the facts alleged in the amended bill because of the collateral source rule. Under this rule, a tort feasor is not entitled to have the damages for which he is liable reduced by proving that an injured party has received compensation from a collateral source wholly independent of the tort fea-sor. The rule was stated in Coker v. Five-Two Taxi Service, 211 Miss. 820, 52 So.2d 356 (1951) as follows:

The appellant also assigned as error that the Court erred in permitting the appellee on cross-examination of appellant, over objection, to testify to the amount of money that he had received under the Workmen’s Compensation Law. We are of the opinion that this evidence was incompetent. 25 C.J.S., Damages, Sec. 99, states: “Compensation or indemnity for the loss received by plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the latter in mitigation or reduction of damages, and, by some authorities, this rule also applies to payment of salary or expenses.
“The wrongdoer is not entitled to have the damages to which he is liable reduced by proving that plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him. Under this general rule, insurance in behalf of the injured person cannot be set up by the wrongdoer in mitigation of the loss.” To the same effect is 15 Am.Jur., Damages, Sec. 201. (211 Miss, at 825, 826; 52 So.2d at 357)

The rule was followed in Ward v. Mitchell, 216 Miss. 379, 62 So.2d 388 (1953). An exception to the collateral source rule appears in Horton v. Brooks, 325 So.2d 912 (Miss.1976). In that case we held that a plaintiff could not recover medical expenses paid by the Medicaid Commission because section 43-13-125 Mississippi Code Annotated (1972) gives the Medicaid Commission exclusive right to recover payments for medical assistance made by the Commission. In Horton, we stated:

In our opinion, this statute clearly gives the Medicaid Commission the exclusive right to make claim for or bring suit for sums paid by the Medicaid Commission for medical assistance to a recipient for injuries, disease or sickness caused under circumstances creating a cause of action in favor of the recipient against any person, firm or corporation.
The authorities relied upon by the appellant which permit an injured person to recover for medical assistance paid gratuitously or by insurance companies, benefit societies, fraternal societies, employers and other collateral sources are not applicable where the benefits are paid by Medicaid, as the statute gives the exclusive right of recovery for such payments to the Medicaid Commission. (325 So.2d at 915, 916)

Coker and Horton are not in conflict because the decision in Horton was mandated by statute.

In the case filed by the two Mrs. Court-neys in circuit court, the Farrises, who were defendants, were not entitled under Coker to have the damages reduced by proving the plaintiffs had received compensation for their medical expenses and loss of income from the complainant in this case because the payments were from a collateral source wholly independent of the defendants. Moreover, when defendants settled the circuit cases, they could not reduce the settlements by the amount received by plaintiffs from a collateral source.

Complainant did not allege in its amended bill that it secured an assignment from the Courtneys of their claim against the defendants to the extent of the payments made by complainant to the Courtneys. If the Courtneys had assigned their claim against the defendants to the extent of the payments received by them from the complainant, the defendants in the circuit court action would have been entitled to a reduction of damages equal to the amount of the assignment.

By failing to secure an assignment from the Courtneys, complainant left the defendants in the circuit court damage suits liable for all damages to the plaintiffs. Complainant now seeks to recover, in an equity court, damages from the defendants which, if permitted, would amount to double recovery from the defendants for the same damages. Complainant could have prevented double recovery by securing an assignment; this, it failed to do. It is contrary to all principles of equity to allow double recovery when it could have been prevented by the one seeking double recovery.

The fact complainant notified the plaintiffs and defendants in the circuit court cases, after suit filed and before settlement, that it claimed subrogation does not aid complainant in this case. Absent an assignment, defendants in the circuit court cases remained liable for all damages because of the collateral source rule. We therefore hold complainant failed to state a cause of action and the demurrer was properly sustained.

Complainant contends it is entitled to recover under our holding in Employers Mutual Casualty Co. v. Meggs, 229 So.2d 823 (Miss.1969). In that case the insured executed a written assignment to the insurance company who requested the tort feasor to pay for the damage to insured’s automobile. After the tort feasor received this request he settled with the insured for $3,000 for all liability arising out of the collision in which the insured’s son was injured and in which insured’s vehicle was damaged. We held that the insurance company’s suit should not have been dismissed. We distinguish Meggs because the insurance company secured an assignment from the insured in Meggs, but no assignment was secured from the insured in the case under consideration.

AFFIRMED.

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

      . The rationale of cases supporting this position is not applicable in Mississippi because claims for personal injuries may be assigned under section 11-7-3 Mississippi Code Annotated (1972). Farmer v. Humphreys County Memorial Hospital, 236 Miss. 35, 109 So.2d 356 (1959); Anderson v. Kelly, 99 So. 382 (Miss.1924); Wells v. Edwards House and City Railway Co., 96 Miss. 191, 50 So. 628 (1909).


author: WALKER, Justice, for the Court:

text:
    A. A. HOME IMPROVEMENT CO., INC. v. HIDE-A-WAY LAKE CLUB, INC.
    No. 52382.
    Supreme Court of Mississippi.
    Feb. 18, 1981.

      Bobby J. Garraway, Lumberton, for appellant.
    Ray M. Stewart, J. Edmand Pace, Stewart, Burks & Pace, Picayune, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice, for the Court:

A. A. Home Improvement Co., Inc., appeals from a final decree of the Chancery Court of Pearl River County, Mississippi, ordering it to block its lot in Hide-A-Way Lake Subdivision so that the lot may not be used as a thoroughfare, and to prevent the use of the lot as a roadway.

The appellant Corporation purchased Lot 52, Unit 1, Hide-A-Way Lake Subdivision in 1974. In 1975, Mr. Erwin J. Smith purchased a tract of land adjacent to the southern boundary of Lot 52. He later conveyed title to this adjacent tract to Millbrook Estates. Both entities, A. A. Home Improvement Co., Inc. and Millbrook Estates, are owned by Mr. Smith.

Hide-A-Way Lake is a private subdivision in Pearl River County. In 1973 the developer conveyed title to certain properties to the appellee Club for the common benefit of the property owners in the subdivisions. The conveyance excepted all platted lots in Units 1 through 19 of the subdivision but included all of the developers’ rights and interests in and to certain restrictive covenants, which were recorded in the office of the chancery clerk on March 14, 1969. The stated purpose of the covenants was to carry out a general plan of development and maintenance of the subdivision. They specifically delegated to the appellee Club the duty to provide, for the common benefit of lot owners, a “clubhouse and private recreational facilities in the area, and to establish and maintain parks, lanes, lakes, and security protection.... ” The covenants also required lot owners to pay their share of the specific expenses required and expended to maintain the lanes, roads, parks, lakes and security protection.

Over the years the Club has contracted for security guard services. In addition, there is a fence surrounding the entire perimeter of the subdivision. There is only one entrance to the subdivision, controlled by a guardhouse located on Lakeshore Drive. A security guard is stationed at this entrance twenty-four hours a day, and he is responsible for stopping unauthorized persons from entering the subdivision. There is an emergency entrance, but it is controlled by a gate which is kept locked at all times. There are also two or three openings in the fence behind residences within the subdivision, and the owners use these openings to travel to and from an adjacent golf course. These openings are usually kept locked, and are used mainly for golf carts. There are no roads or driveways through these private entrances.

As stated above, Lakeshore Drive provides the only authorized access to the subdivision. It is not a dedicated street; it is maintained by the appellee Club, as are the other streets within the subdivision.

In March of 1976, Mr. Smith obtained a chancery court ruling that he owned that part of the fence separating his Lot 52 from his adjacent property to the south of the subdivision. In August of 1976, he removed the fence and began using Lot 52 as a connecting roadway between Lakeshore Drive in Hide-A-Way Lake and Fairway Drive in Millbrook Estates. At that time Mr. Smith had a home in Hide-A-Way Lake Subdivision. He has since sold that home, and two other homes which he built in the subdivision, and moved to Millbrook Estates. The record does not show that he owns any property in Hide-A-Way Lake Subdivision other than Lot 52. There is no home or other building on Lot 52.

The northern boundary of Lot 52 is Lake-shore Drive. Along the southern boundary of Lot 52 is a street, Fairway Drive, which is within Millbrook Estates. Millbrook Estates subdivided the property south of Lot 52, and after the subdivision began to develop, Fairway Drive was paved. The record indicates that the appellant Corporation, or other men working for Mr. Smith, placed a culvert between Fairway Drive and Lot 52, and cars and trucks began entering and exiting Hide-A-Way Lake Subdivision through Lot 52 and a corner of the adjoining Lot 53. The Board of Directors of Hide-A-Way Club, Inc., received numerous complaints from residents within the subdivision concerning unauthorized traffic within the subdivision. The complaining residents thought that the opening up of Lot 52 for vehicular traffic caused a serious breach in security in the subdivision, and there was evidence that at least one burglar had gained entrance to the subdivision through this lot. The appellee brought suit against the appellant, alleging in its bill of complaint that Mr. Smith was using Lot 52 as a public thoroughfare and was permitting the public to use Lot 52 as a thoroughfare. It was the Club’s contention that to permit this use of the lot was a violation of the letter and spirit of the following restrictive covenant:

No lot shall be used for other than residential purposes (except as elsewhere herein provided)... .

The defendant answered, denying, inter alia, that it had used or allowed the public to use Lot 52 as a public thoroughfare. The lower court heard three days of testimony and also viewed the premises. In its final decree, the court made findings of fact, which included the following:

(2) That said covenant [the restrictive covenant] is valid and binding and not in violation of public policy.
(3) That security and privacy of the home is a valid right subject to protections by the law.
(4) That that right has been breached by the Defendant.
(5) That the use of the roadway across Lot 52 does not constitute use of Lot 52 for residential purposes and further the placing of the culvert by the Defendant between Lot 52 and the adjacent street in Millbrook Subdivision indicates bad faith on the Defendant, and further that Lot 52 could not have been used as a roadway between the Defendant’s subdivision, Millbrook Subdivision, and Hide-A-Way Lake Subdivision, had said culvert not been placed there by the Defendant.
(7) That the injunction should be granted and the Defendant and its principals ordered to conform to the covenants and to prevent use of Lot 52 as a roadway, and to effectively block Lot 52 so that it may not be used as a thoroughfare.

The appellant argues that the use of the roadway across his restricted property does not violate the restrictive covenant in this case. This is a question not faced by this Court before. The appellant relies principally on three cases, Baxendale v. Property Owners Association of North Shore Acres, Inc., 138 N.Y.S.2d 76, affirmed 285 App.Div. 1148, 140 N.Y.S.2d 176, affirmed 309 N.Y. 871, 131 N.E.2d 287 (1955); Casebeer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970); and Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619 (1954).

The facts in Casebeer and Callaham are clearly distinguishable from the facts in this case. In Callaham, the Court held that the owner of four lots in a subdivision could locate a fifty foot street or roadway along the line between two of the lots in the subdivision without violating a restrictive covenant limiting the use of the property to residential purposes. The North Carolina Court said that ordinarily the opening and maintenance of a street or right-of-way for the better enjoyment of residential property as such does not violate a covenant restricting the property to residential purposes. It ruled that, since the intention of the owner of the property over which the right-of-way would pass was to designate it as a private drive to be used only by individuals with land abutting on the passageway and since there was no connection of the proposed right-of-way with any street or property outside the subdivision itself, the passageway would not violate the restrictive covenant limiting the use of the property to residential purposes.

In Casebeer, the Arkansas Court cited Callaham, and ruled that the owner of the property within a subdivision could construct a roadway across the land owned by it connecting two streets within the same subdivision. The restrictive covenant in that case read:

LAND USE AND BUILDING TYPE. No lot shall be used except for residential purposes.

The Baxendale case is distinguishable because the restrictive covenants in that case were not the same as those in this case. In Baxendale the plaintiff sought a declaratory judgment establishing his right to construct a public road over a lot in a subdivision restricted as follows:

All plots be known and described as residential plots. ... No buildings of any kind shall be hereafter erected upon premises except one detached single dwelling.... [NJothing shall be done thereon which may be or become an annoyance or nuisance of the neighborhood.

The Court, noting that a road is not a building, held that nothing in these covenants prevented the construction on plaintiff’s property of a public road for ingress to and egress from adjoining property. Such a road did not violate the restrictions against offensive trades and it was not per se an annoyance or a nuisance.

The appellee relies principally on Long v. Branham, 271 N.C. 264, 156 S.E.2d 235 (1967). In that case, the North Carolina Court cited five cases in which courts refused to enjoin the use of a roadway over property restricted to residential use only; and five cases in which courts did enjoin the use of a roadway over property restricted to residential use only.

In the Long case the Court posed the question thusly:

Do the restrictions which provide that no lot in Timbercrest Subdivision “shall be used except for residential purposes” prevent an owner from constructing across a part of his lot within the subdivision a roadway connecting a street in Timbercrest with one in the adjoining subdivision of Oak Hills, which is protected by restrictions substantially similar to those of Timbercrest? The Court, after noting that each case must be determined on its own particular facts, ruled that, nothing else appearing, restrictions imposed upon a particular subdivision are for the benefit of that particular development and no other. Therefore, it reasoned, if its lots are restricted to residential use only, that is tantamount to saying that they are restricted solely to residential use in that subdivision. The Court then held that the restrictive covenants in Timber-crest Subdivision precluded the road proposed by the defendant. The Court also distinguished the Callaham case because the streets which were the subject of controversy in that case were all within the original subdivision. There was no plan to connect the new streets with those of any adjoining development, and the opening of additional streets within that subdivision was within the contemplation of the parties.

In construing restrictive covenants, the question is primarily one of intention, and the fundamental rule is that the intention of the parties as shown by the agreement governs, being determined by a fair interpretation of the entire text of the covenant. See, Annot., 25 A.L.R.2d 904, 905 (1952); 20 Am.Jur.2d Covenants, Conditions and Restrictions, § 232 (1965).

There is no ambiguity in the expression “No lot shall be used for other then residential purposes.” Any additional use must be reasonably incidental to residential uses and such an inconsequential breach of the covenant as to be in substantial harmony with the purpose of the parties in making the covenants, and without substantial injury to the neighborhood. See Thompson v. Squibb, 183 So.2d 30 (Fla.D.C.App.2d 1966). It is obvious that the use of Lot 52 on which there is no residence as a connecting roadway to an adjoining subdivision is not in any sense a residential use or a use incidental thereto. In this case, the sole purpose of the roadway is to provide a means of ingress and egress between two subdivisions. It destroys the self-contained aspect of the subdivision, and the security that goes along with it. It also imposes additional traffic on the roads of the subdivision. The covenant which requires the appellee Club to maintain the roads, with the expense to be shared by all lot owners, shows an intent not to enlarge the exposure of the streets to more traffic than the layout of the plat and its connections would produce.

We, therefore, hold that the lower court was correct in enjoining the use of this lot as a roadway, and ordering the appellant to block the roadway across the lot so that it could not be used as a public thoroughfare.

AFFIRMED.

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

      . Bove v. Giebel, 169 Ohio St. 325, 159 N.E.2d 425; R.R. Improvement Association v. Thomas, 374 Mich. 175, 131 N.W.2d 920; Baxendale, supra; Mairs, et al. v. Stevens, et al., 268 App. Div. 922, 51 N.Y.S.2d 286; Vinyard v. St. Louis County, 399 S.W.2d 99 (Mo.1966).

      . Duklauer v. Weiss, 18 Misc.2d 747, 182 N.Y. S.2d 193; Donald E. Baltz, Inc. v. R. V. Chandler & Co., 248 S.C. 484, 151 S.E.2d 441 (1966); Klapproth v. Grininger, 162 Minn. 488, 203 N.W. 418, 39 A.L.R. 1080; Thompson v. Squibb, 183 So.2d 30 (Fla.D.C.App.2d 1966).


text:
    Larry EDGE v. STATE of Mississippi.
    No. 52318.
    Supreme Court of Mississippi.
    Feb. 18, 1981.

      John B. Farese, Farese, Farese & Farese, Ashland, Joseph B. Garretty, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice, for the Court:

This is an appeal from the Circuit Court of Prentiss County, Mississippi, wherein the appellant, Larry Edge, was tried and convicted of the crime of murder and sentenced to life imprisonment. From that judgment and sentence, the appellant appeals. We reverse and render as to murder, but remand for a new trial on manslaughter.

This case involves the death of John Wayne Murphy at the hands of the appellant, Larry Edge. The persons involved in this unfortunate episode were the appellant, Larry Edge, his wife, Geneva Edge, John Wayne Murphy, the deceased, and his girlfriend, Eva Epperson. These four people were friends and an extramarital relationship developed between the deceased, John Wayne Murphy and the appellant’s wife, Geneva Edge. At the time of the death of John Wayne Murphy, the four were at Elder’s Lake, having gone there at the insistence of the deceased. Geneva Edge had earlier told Murphy, in the presence of Larry Edge and Eva Epperson, a witness for the state, that she wanted to break off their relationship and that it was final. While sitting around a fire, Murphy, who had been drinking heavily and taking codeine pills, made the statement that if he could not have Geneva no one could. He sent Eva to look for wood to put on the fire. While Eva was gone, Murphy grabbed Geneva, wrestled her to the ground, and while holding her down said that he was going to have her and that if he could not have her that he would kill her and kill himself. The appellant, Larry Edge, attempted to pull Murphy off of Geneva but was cut on the hand with a knife by Murphy. Edge thereupon went to his car from which he took a shotgun, placed a shell in it, and went back and placed it close to Murphy’s head and shot him. The entry wound made by the shotgun blast was located behind the decedent’s left earlobe. The exit wound involved the entire jaw area of the right side of the face. Pellet wounds were found in the upper medial portion of decedent’s right arm. Geneva testified that the deceased was so close to her that the shotgun blast caused blood to get on her coat.

The appellant argues that he was justified in shooting Murphy in defense of his wife whose life was being threatened. Mississippi Code Annotated section 97-3-15 (1972).

He also contends that at most he would only be guilty of manslaughter. Mississippi Code Annotated section 97-3-31 (1972) states:

Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter. (Emphasis added).

I.

The appellant first contends that “[He] was entitled to a directed verdict of acquittal at the close of all of the evidence in this case, there being no competent evidence to contradict appellant’s version of the homicide which made out a clear case of justifiable homicide,” claiming the benefit of the rule laid down in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

The appellant argues that the action taken in defense of his wife clearly came within the statutory definition of justifiable homicide under section 97-3-15 which provides, in part, as follows:

... killing of a human being by the act ... of another shall be justifiable.... (f) When committed in the lawful defense of ... any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.

He argues that since there is no material contradiction in the evidence presented by the eyewitnesses to the homicide and the state’s witness, Eva Epperson, their version must be accepted as true, contending that it is reasonable and is not contradicted in material particulars by any other witness or by the physical facts or by the facts of common knowledge. Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). In Weathersby, the Court stated:

[W]here the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge. (165 Miss. at 209, 147 So. 481).

We have meticulously considered this record and are of the opinion that the requirements of Weathersby are not met. Geneva Edge testified that she and the deceased were so close at the time of the shotgun blast that his blood got on the front of her coat. She also testified that she was wearing the same coat when she gave her statement to law enforcement officers later that night. However, the officers and others who saw Mrs. Edge that night testified that they saw no blood on her clothing. The coat was not introduced into evidence nor was its absence explained. The close' proximity of Geneva to Murphy (he allegedly had her down on the ground) was a crucial element of appellant’s defense of justifiable homicide.

Therefore, since the material evidence is in conflict, we are of the opinion that this is not a case for the application of the Weathersby rule. As we have stated before, it is a rare case that meets all the requirements of Weathersby. However, we are of the further opinion that the evidence does not rise to that high degree which would justify a jury in finding the defendant guilty of murder beyond a reasonable doubt and his motion for a directed verdict as to the charge of murder should have been sustained, leaving only the charge of manslaughter to be considered by the jury.

II.

The appellant assigns as error that “The trial court erred in allowing improper jury argument on the part of the state.”

In his closing argument to the jury, the county attorney told the jurors: “The law doesn’t require you to know that this man is guilty. All you have to do is believe it beyond a reasonable doubt.”

Defense counsel objected to the prosecuting attorney’s argument, but his objection was overruled.

In the case of Clemons v. State, 320 So.2d 368 (Miss.1975), this Court reaffirmed the principle that it is the trial court, and not the prosecutor, who advises the jury on the law. In Clemons, the district attorney told the jury in a possession of marijuana case that:

“The court does not tell you that you have to know the defendants are guilty, and you do not have to know they are guilty before you can find them guilty.” (320 So.2d at 372).

In Clemons, the Court went on to rule as follows:

In the first place, it is the duty of the trial judge to instruct the jury and not the district attorney. Pearson v. State, 254 Miss. 275, 179 So.2d 792 (1965); Mississippi Code Annotated section 99-17-35 (1972).
In Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949), this Court pointed out that the trial court should have sustained an objection to a legal instruction verbally given by the district attorney to the jury. In that case, however, the verdict of the jury was affirmed. Nevertheless, the Court said: “In this state it is the province of the trial judge to announce the law to the jury.” 206 Miss. at 755, 40 So.2d at 614. See also Harris v. State, 207 Miss. 241, 42 So.2d 183 (1949); 23A C.J.S. Criminal Law § 1110, at 217 (1961).
This instruction has been condemned by this Court so often that it seems unnecessary to continue to cite authority on this issue. See some of thq cases listed in Kent v. State, 241 So.2d 657 (Miss.1970).
Now we find that although the trial judges have ceased to use this instruction, the district attorney in this case not only used the instruction verbally in his argument, he argued with the trial judge when the judge sustained an objection to the argument.
In the case of Pearson v. State, 254 Miss. 275, 179 So.2d 792 (1965), where the trial judge permitted the district attorney to give to the jury a verbal instruction, this Court said: “For the error, growing out of this incident in the closing argument, the cause must be and it is, reversed and remanded for a new trial. 254 Miss. at 293, 179 So.2d at 800. (320 So.2d at 372).

The remarks of the prosecuting attorney were error in Clemons causing reversal and is reversible error here requiring that the case be remanded to the circuit court for a trial on the charge of manslaughter.

III.

The appellant next assigns as error that the trial court erred in refusing to allow surrebuttal testimony by one Jackie Hamblin, who would have testified that Mrs. Edge’s jacket did in fact have blood all over it as support of his contention that he shot Murphy in defense of his wife. The state put on- several rebuttal witnesses. Sheriff Martin testified that he did not see any blood on Mrs. Edge’s clothing. Joey Cobb testified that he did not see any blood on Mrs. Edge’s clothing. William Shouse testified to the same effect.

The appellant argues that the state’s rebuttal testimony tore the heart out of his defense of justifiable homicide. Mrs. Edge testified that she had blood all over her clothing as a result of the shooting. She said that Murphy was attacking her when he was shot. Inherently, the state’s rebuttal testimony was prejudicial because it, by inference, denied the validity of appellant’s version. If Mrs. Edge’s coat was not covered with blood, then an argument could be made that Larry Edge did not shoot John Wayne Murphy in an attempt to save his wife’s life. Appellant tried to counter this prejudice by calling Jackie Hamblin, who testified outside the presence of the jury that Mrs. Edge’s jacket had blood all over it.

The trial court refused to allow the Hamblin surrebuttal testimony to go to the jury. The court stated that while it was not trying to restrict anyone from offering testimony, the effect of allowing surrebut-tal would be continual testimony, “. . . and we never would get out of here.”

The rule is well settled in this state that where rebuttal evidence is introduced, surrebuttal should be allowed, particularly where to fail to do so would be prejudicial. (Nicholson v. State, 243 So.2d 552 at 555 (Miss.1971)).

As stated in an earlier part of this opinion, a key part of the appellant’s evidence in support of his claim of justifiable homicide was- that the deceased had grabbed Mrs. Edge, had her on the ground, was over her and threatening to kill her, with a knife at her throat, and that Murphy and Mrs. Edge were so close that blood got all over her coat as a result of the shotgun blast. After several state’s witnesses testified that they saw no blood on her clothing, fundamental fairness and due process required that the appellant be given an opportunity to call the witness, Jackie Hamblin, in an attempt to refute the state’s position and to corroborate Mrs. Edge’s testimony on this very material and crucial point. For this reason, the judgment and sentence of the trial court must be reversed and remanded for a new trial.

IV.

The appellant next assigns as error that the trial court erred in refusing to grant a recess because of the exhaustion of appellant’s trial counsel.

After the state rested its case, the following colloquy took place between defense counsel and the court:

BY MR. GARRETTY: Your Honor, comes the defendant and moves the Court to recess this trial until tomorrow, and assign as reason for that the fact that I am extremely fatigued at this point. I have been at this trial all day long; the jury has been here all day long; they have had a chance to listen to the State’s side of this case when they were relatively fresh. If we continue on with this, I don’t known as a matter of fact, I don’t think I can do the job adequately, as far as I am personally concerned, on behalf of the defendant, in getting into — going to get into a very difficult part of this job and I think I should have the right to be mentally alert. I am not at this point. I doubt the jury would be alert at this point and I frankly, myself, Your Honor, do have to take some medication. My usual dosage is one a day, and they will usually send me through the day. I am to the point now where I just don’t feel I can physically continue with this trial, and represent Mr. Edge and I move that the Court recess this case until in the morning. I have now been down here, Your Honor, over ten hours with one aspect of this case or another, and quite frankly, that’s long enough for me to try to work on a case like this, concerning a murder case.
BY JUDGE WICKER: All right. Of course, I advised counsel early this morning for the State and Defendant that I would like to speed it along as much as I could. It is imperative I get through the case tomorrow. I have some official business that I have got to attend to, and it is very imperative that I be there on Friday. And I don’t really see any reason why this case couldn’t be tried without any problem in two days. As far as the testimony is concerned, we started taking testimony at three-thirty. That means we have been on the trial of the case for three hours, and the matter of selecting the jury, which was counsel for the State was taking a great deal of time and counsel for defendant was principally waiting around to see what the report was from counsel for the State. I believe it is imperative in order to get through with this case tomorrow that we go awhile longer tonight. I don’t see any reason why the jury would be particularly fatigued, any more than the Court would be. I have been trying a case for two days, in addition to taking care of a good many arraignments, in the meantime, we were rather late last night, and the Court seems to be in pretty good shape physically, fairly fresh, and I don’t believe counsel ought to be in any worse shape than I am in. I am going to overrule the objection, and we will take that into consideration in deciding how late we ought to go. Any further motions?

Ordinarily, trial judges have broad discretion in determining when trials will begin and how long they will continue on any given day. However, participating in the trial of a case as an attorney is both mentally and physically exhausting. Trial courts should keep this in mind and not require attorneys, over their objections, to continue beyond their limits. Nor should the court begin a case when there is not sufficient time, for any reason, to conclude it without pushing the attorneys beyond their physical capabilities. To do so deprives a defendant in a criminal case of his right to effective assistance of counsel as guaranteed by the Sixth Amendment to the Constitution of the United States and Art. 3, Section 26 of the Mississippi Constitution. For a lengthy discussion of this principle, see Thornton v. State, 369 So.2d 505 (Miss.1979).

At the time the motion for the court to recess was made by the defendant’s attorney, Mr. Garretty, it was 6:30 p. m. Although testimony had only been taken for approximately three hours, it is undisputed that Mr. Garretty had been involved in one aspect of the case or another, including the selection of the jury, for over ten hours that day and explained to the court that he was “extremely fatigued.” We are of the opinion that under the circumstances presented the appellant was denied effective assistance of counsel at a most crucial stage of his trial, i. e., the beginning of the presentation of his defense. For this reason, the judgment of the trial court and sentence must be reversed and the cause remanded for a new trial.

Upon remand, if the appellant again moves for a change of venue and the evidence is as strong in support thereof as is shown by this record, it should be granted.

For the reasons stated above, the judgment and sentence of the appellant must be reversed and the cause is remanded to the circuit court for a new trial on manslaughter.

REVERSED AND REMANDED FOR A NEW TRIAL ON MANSLAUGHTER.

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

HAWKINS, J., took no part.


author: BROOM, Justice,

text:
    Larry TAYLOR v. Ollie WARD.
    No. 52415.
    Supreme Court of Mississippi.
    Feb. 18, 1981.

      Charles C. Jacobs, Jr., Jacobs, Griffith, Pearson, Eddins & Povall, Cleveland, for appellant.
    Mitchell M. Lundy, Lundy & O’Neal, Grenada, for appellee.
    Before ROBERTSON, BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Peremptory instruction granted the plaintiff Ollie Ward (appellee here) in his suit against the defendant Larry Taylor (appellant here) highlights this appeal from the Circuit Court of Grenada County. Two questions are presented here: was the plaintiff erroneously given a peremptory instruction and did the trial judge err in evidentiary rulings?

Purchase of a D-7 Caterpillar bulldozer (dozer herein) by defendant Larry Taylor (Taylor herein) from the plaintiff forms the factual background in this suit. In August 1979, plaintiff Ward advertised the item for sale in the Commercial Appeal; his ad stated that the dozer was in “A-l condition.” After seeing the ad, defendant Taylor, accompanied by his brother Doug Taylor (Doug herein), came to the plaintiff’s place in Grenada County and briefly tested the dozer. The parties agreed upon a sale price of $9,500, and the defendant gave plaintiff a $9,500 check. The next day the defendant and his brother came back to Grenada and took possession of the dozer.

While the defendant and Doug were there, they found out that the plaintiff also had a dragline for sale which Doug purchased for $5,000 by check which he gave to the plaintiff. When the dragline was delivered, the Taylors discovered that it lacked the bucket and harness. Later the next day the plaintiff delivered the bucket to Doug Taylor but did not deliver the harness. When the two Taylor brothers discovered that the harness was not delivered, Doug called the Bank at Shaw to stop payment on his $5,000 check which he had given for the dragline. By that time, the plaintiff had gone to the Bank and cashed the $5,000 check. Unhappy about the $5,000 check already being cashed, the Taylors agreed that the defendant would stop payment on the $9,500 check issued the plaintiff as payment for the dozer until the plaintiff delivered the harness to Doug. Accordingly, Larry stopped payment. Unable to cash the $9,500 check, plaintiff Ward called defendant Taylor and asked about payment being stopped. Taylor testified at trial that he told Ward that the dozer “wasn’t as he said it was ... and he should take ...” it back. Taylor also explained that he stopped payment because the plaintiff had failed to deliver the dragline harness but that he would make it good when and if plaintiff delivered the harness. Following plaintiff’s delivery of the harness several weeks later, the defendant refused to make the $9,500 check good because he had become dissatisfied with the dozer.

In December 1979, plaintiff Ward sued Taylor to recover the $9,500 dozer purchase price, plus an additional 25% damages. Defendant’s answer contained his denial of the declaration’s material allegations and also an affirmative defense that he was justified in not making the check good

since there had been a breach of the warranty as expressed by plaintiff at the time of purchase and also a breach of the implied warranty of fitness for the purposes intended, all in violation of § 75-2-315, Mississippi Code of 1972....

Defendant’s answer also alleged that

he did not intend to defraud Plaintiff in any way by stopping payment on the check but that his initial stop payment was required in order to make Plaintiff live up to his total contract between Plaintiff and Defendant and his brother. Defendant states further that the check was not made good later because in the meantime, Defendant had attempted to use the bulldozer and found that it was not as warranted by Plaintiff and it was not fit for the purposes for which it was purchased. ... ,
After both sides rested, the lower court finding that the defense offered by the defendant was insufficient as a matter of law, finds that said motion of the plaintiff for a directed verdict in said amount should be and is sustained and given.

The defendant appeals. His first argument is that a “jury question arose as to whether or not an express warranty was given by the plaintiff in this case concerning the D-7 Caterpillar and whether or not there was a breach of such warranty.” Testimony offered by the defendant was that he saw two other advertisements of dozers but that he decided to do business with the plaintiff because the plaintiff’s ad stated that the dozer was in “A-l condition.” He states that he relied upon this representation and argues that it was at least a jury question as to whether or not the “A-l condition” representation was a part of the “bargain” between the parties. The defendant states in his brief that according to the UCC, Mississippi Code Annotated § 75-2-608 (1972) as buyer he had the right

to revoke his acceptance of a “commercial unit” whose nonconformity impairs its value to him. That is, if the nonconformity was reasonably induced by seller’s assurances and the revocation occurs within a reasonable time after discovery of the defect.

The defendant contends that

an express warranty was given concerning the bulldozer which was sold to the defendant. This express warranty was included in the advertisement wherein the bulldozer was described as being in “A-l condition” along with oral representations made by the plaintiff at the time of the sale.

In the presentation of his case, the plaintiff related the facts given above and stated that when he delivered the dragline harness the defendant said that he would not make the check good because he was not satisfied with the dozer. Plaintiff denied that the defendant told him the dozer did not have any power or was not as it was represented to be.

The plaintiff further testified that although the defendant said that he did not want the dozer and was not going to pay for it, he did not say anything to him about being allowed to come and get it. The plaintiff stated that during the trial he had just learned that the defendant would now offer the dozer back to him. Plaintiff, however, was unwilling to take it back because it had been some five months and because “you can tear up a dozer in that length of time.” The plaintiff testified that the dragline deal was a separate transaction from the dozer sale.

In his testimony, the defendant stated that he and his brother were partners and unsuccessfully attempted to stop payment on the $5,000 check after the dragline harness had not been delivered. Then he said that because he was unable to stop payment on it since it had already been cashed, he stopped payment on the $9,500 dozer check due to the fact that the plaintiff had failed to keep his agreement on the dragline. The defendant stated that the dozer, represented to be in A-l condition, would not properly function although he admitted that when he purchased it, he pushed a small tree and back-dragged a little of the land. He reiterated that the plaintiff told him he had just spent $7,200 on it and that it should be operable for two years without any major work. According to the defendant, when he told plaintiff that he was not happy with the dozer he gave him the alternative of taking it back after he had only used it approximately 3 hours. Excerpted from the record is the following colloquy which occurred during direct examination of Larry Taylor:

Q. Now, Mr. Taylor, did you ever make any representation to Mr. Ward about him — about rescinding the sale and him picking up the bulldozer and your delivering it back to him, and if so what representation did you make?
A. Well, one time he had called me, and I told him at that time that I wasn’t happy with the dozer; that it wasn’t as he said it was, and I felt that he should take the dozer back or make some type of agreement of cutting down on the price or for him to get back in touch with me if he had any second thoughts on it.
Q. What was his response to what you said?
A. I never did receive a call from him.
Q. Now, did you definitely give him an alternative of taking the tractor back?
A. Yes, sir, I sure did.

This testimony was given without objection. Further, he testified that after he bought the dragline, he and his mechanic worked on it for 5 to 6 hours trying to get it to run. He admitted trying out the dozer on the plaintiff’s farm before delivering the check.

After the defendant testified, his brother Doug who purchased the dragline testified and stated that he and the defendant were brothers and purchased equipment together as partners. He stated that the sale and purchase of the dozer did not depend upon any subsequent sale of the dragline. The defendant also presented another witness, Joseph Lee Robinson, who testified that he watched the dozer in operation and said that it did not have power to push. Robinson also noted that it was not suitable for clearing land and that while Doug was operating it, the drive shaft fell out.

After hearing the evidence presented on both sides, upon request of the plaintiff, judgment was entered for the plaintiff: the court, being of the opinion that at the time Larry stopped payment on the check for the bulldozer, he had no legal right to do so. The court also sustained a motion of the plaintiff for 25% damages.

We think the appellant is correct in arguing that there was a jury question on the issue of whether there was a breach of an express warranty, and therefore, the court should not have directed a verdict for the plaintiff. As pointed out by the appellant in his brief, the court did not consider whether there had been a breach of warranty and the failure or partial failure of consideration which justified the defendant’s action. The following is a pertinent portion of Mississippi Code Annotated (1972):

§ 75-2-313. Express warranties by affirmation, promise, description, sample.
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.

Here taking as true the testimony offered by the defendant (as we must in passing upon the peremptory instruction), it is a fact: (1) that the tractor was advertised by a published writing as being in “A-l condition,” (2) that the seller represented that he had recently spent $7,200 for work on the tractor, and (3) that it should be usable for two years without any major work. According to defendant’s testimony, the dozer would not do ordinary and customary dozer uses that it was purchased for, i. e., dig fish ponds, clear land, and move earth. Defendant’s testimony was that when he tried to push down small trees, it lacked sufficient power. Witness Robinson testified that the drive shaft fell out because “the holes were worn out and the bolts wouldn’t stay tight.” Larry Taylor’s testimony quoted herein-above establishes that he discussed with Ward that Ward should take the dozer back or make some adjustment.

The summary of the evidence shows that the plaintiff represented that the dozer was in “A-l condition,” and it appears that he knew the purposes for which the dozer was intended to be used by the purchaser, defendant Taylor. Further it is clear that according to the testimony given by the defendant, which we must accept as true in this posture, the dozer would not properly function. Of course, in many sales of used or second hand vehicles, there may not be any express warranty, but in this case there was such evidence which should have been passed upon by the jury. Therefore as an affirmative defense at least the appellant/defendant Taylor was entitled to have the jury consider the testimony and render a verdict upon proper instructions in accord with the theories presented by the pleadings and testimony. Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss.1975).

We think that the evidence with reference to the dragline was a separate and non-related transaction and that the trial court correctly refused to allow details as to the “dragline deal” into evidence. Defendant’s proffered testimony about the ads (including plaintiff’s A-l ad) showing dozers for sale was relevant and should be allowed at retrial.

REVERSED AND REMANDED.

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


author: LEE, Justice,

text:
    G. E. HART v. E. V. CATOE, Jr.
    No. 52244.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    See also, 390 So.2d 1001.
    J. B. Van Slyke, Jr., Pope & Van Slyke, Hattiesburg, for appellant.
    F. Douglas Montague, III, Gray, Montague & Pittman, Hattiesburg, for appel-lee.
   ON MOTION FOR AWARD OF STATUTORY DAMAGES

EN BANC.

LEE, Justice,

for the Court:

On December 3, 1980, we affirmed a judgment of the Forrest County Chancery Court cancelling claims of G. E. Hart to certain lands of E. V. Catoe, Jr. The appel-lee Catoe has filed a Motion for Five Percent (5%) Statutory Damages following af-firmance. Mississippi Code Annotated Section 11-3-23 (1972) provides in part as follows:

“In case the judgment or decree of the court below be affirmed, or the appellant fails to prosecute his appeal to effect, the Supreme Court shall render judgment against the appellant for damages, at the rate of five per centum and costs as follows: ... If the judgment or decree be for the possession of real ... property, the damages shall be assessed on the value of the property.”

The record in this case does not indicate the value of the property and the question here presented is how to arrive at such value in order to determine the five percent damages. This issue was addressed in McBride v. Burgin, 143 Miss. 596, 108 So. 811 (1926), where the Court said:

“The motion in this case is that the case be remanded to the lower court in order that a writ of inquiry be issued by that court to ascertain the value of the real estate, the possession of which was adjudged to the appellee, Burgin, in the lower court, and which was affirmed here, so that when said value is ascertained the appellee may have the 5 per cent, damages allowed him upon the appeal in this case under sections 4926 and 4927 of the Mississippi Code of 1906 (Hemingway’s Code, §§ 3202 and 3203).
It appears that this record does not disclose the value of the lands awarded to appellee, Burgin, in an ejectment action at a former day of this term of this court, and it being clear that he is entitled to 5 per cent, damages on the value of the real estate, the motion to correct the judgment is sustained so that we shall remand the case to the lower court in order that said court by writ of inquiry may ascertain the value of the real estate involved in this controversy, and that the judgment of this court is that the appel-lee, Burgin, shall have and recover of McBride and others, and the sureties on their bond, the amount of 5 per cent, damages on the value of the property thus ascertained by the writ of inquiry in the lower court.” 143 Miss, at 596-597, 108 So. at 811.

The award of statutory damages in such cases is mandatory, not discretionary. Chrismond v. Chrismond, 213 Miss. 189, 56 So.2d 482 (1952).

We are of the opinion that the Motion for Five Percent Statutory Damages should be sustained and the case is remanded to the Chancery Court of Forrest County in order that the lower court may ascertain the value of the real estate involved. The judgment of this Court is that appellee E. V. Catoe, Jr. shall have of and recover from G. E. Hart and the sureties on his bond the amount of five percent (5%) damages on the value of the property so ascertained by the writ of inquiry in the lower court.

MOTION FOR STATUTORY DAMAGES SUSTAINED.

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

      . The Legislature amended Section 11-3-23, effective July 1, 1980, by Chapter # 533, Miss. Gen.Laws 1291 [1980] increasing the statutory damages on affirmance to fifteen percent (15%). The Bench and Bar should take notice of such amendment.