author: CUTRER, Judge.

text:
    BANKERS & SHIPPERS INSURANCE COMPANY OF NEW YORK, Plaintiff-Appellant, v. HOLIDAY RAMBLER CORPORATION, et al., Defendants-Appellees.
    No. 82-165.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Trimble Randow Percy Smith, Wilson & Foote, Lon P. Wilson, Alexandria, for defendant-appellant.
    Stafford, Stewart & Potter, Russell Potter, Alexandria, for plaintiff-appellee.
    Provosty, Sadler & deLaunay, David Spence, William deLaunay, Alexandria, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises out of a subrogation suit for property damages incurred as a result of a fire which destroyed a travel trailer owned by Michael Barner. Bankers & Shippers Insurance Company of New York (Bankers) paid Barner for the fire loss under their contract of insurance. Barner subrogated his claim to Bankers which filed the suit in question.

Bankers sued Holiday Rambler Corporation (Holiday), the manufacturer of the trailer, and Cenia Camping Center, Inc. (Cenia), the seller, for the fire loss. The trial court dismissed the suit as to Cenia. The trial judge found Bankers had proven by a preponderance of the evidence that Holiday had installed a defective copper flare connection leading into the central heating unit of the trailer. The trial judge further found this connection was the most probable cause of the fire which destroyed the trailer. Judgment was rendered in favor of Bankers and against Holiday in the amount of $17,000.00. Holiday appeals. We affirm.

FACTS

On October 13,1978, Michael Barner purchased a thirty-two foot Imperial Limited Travel Trailer from Cenia. The trailer was manufactured by Holiday. Major appliances in the trailer were operated on either an external electrical hookup or a self-contained L.P. gas system. Gas was carried to each appliance through %" copper tubing and connected to the appliance by flare fittings and brass connectors. Each fitting and connection combination was checked for leaks at Holiday’s plant in Indiana and at Cenla’s sales lot in Alexandria, Louisiana. No gas leaks were found.

The trailer had been parked by Barner near his mother’s home. On May 1, 1979, the trailer was completely destroyed by fire. No one was inside the trailer when the fire started. Barner was a short distance away placing laundry in his mother’s car when his mother spotted smoke coming out of the top of the trailer. After an unsuccessful attempt at controlling the flames with a garden hose, Barner removed the L.P. gas bottles from the front of the trailer to prevent any explosion. The trailer and Barner’s possessions were lost. Bankers paid its policy limits to Barner and was subrogated to Barner’s rights of recovery and brought suit.

Experts appeared for both sides at trial on the merits. The trial court concluded after hearing all of the evidence:

“... plaintiff did produce a preponderance of evidence so as to convince the court that the flare connection leading to the central heating unit was defective, and that this connection most likely caused the fire which destroyed the mobile home.”

The issue presented on appeal is whether the trial judge was clearly wrong in his conclusion that the defective flare caused the fire.

BANKERS’ BURDEN AT TRIAL

The principal issue at trial and the question upon which this decision must rest is whether Bankers established that the flare connection was defective and whether the defect was the most probable cause of the fire. A plaintiff suing a manufacturer on the basis of a claimed injury resulting from a defect in a product has the burden of proving the product was defective and the defect caused plaintiff’s injury. Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971). A plaintiff is not required to prove any specific act of negligence on the part of the defendant. However, a plaintiff is required to prove a defective product manufactured by defendant caused plaintiff’s loss and the causation must be shown by a preponderance of the evidence. Western Cas. & Sur. Co. v. Adams, 381 So.2d 923 (La.App. 3rd Cir.1980). A preponderance of the evidence exists when the evidence, direct or circumstantial, taken as a whole shows that the fact of causation sought to be proved is more probable than not. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

While the existence of a defect is most often proven by direct evidence, causation may be proven by circumstantial evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean the evidence must negate all other possible causes. It suffices if the circumstantial proof excludes other reasonable hypotheses only with a fair amount of certainty, so that it will be more probable than not that the harm was caused by the tortious conduct of the defendant. Otherwise, the mere identification in the record of any other possible cause, even those not shown to be causally related, would break the chain of causation. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972); Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963).

SCOPE OF REVIEW

The existence of a defect and the question of causation are both factual determinations. The appeal court should not disturb the findings of the trier of fact in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Manifest error means clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

"... Where, as here, there is conflict in testimony as to the cause of the fire, reasonable evaluations of credibility and reasonable inferences of fact by the trial court will not be disturbed even though this court may feel other evaluations and inferences are as reasonable."

Cormier v. Foremost Ins. Co., 405 So.2d 610, 612 (La.App. 3rd Cir.1981).

With these principles in mind we will examine the record to determine if the trial court was clearly wrong in its interpretation of the evidence presented.

EXISTENCE OF THE DEFECT

Bankers alleges that the flare connection in the L.P. gas system leading from the gas bottles to the central heating unit of the trailer was defective and this defect caused the fire. For Bankers to be successful in this suit it must prove both the defect and the causal link between the defect and plaintiff’s injury. Five experts appeared at trial. Four of these were of the opinion that the copper tubing which was connected to the central heating unit was insufficiently flared to insure a good seal. The other expert concluded that the flare was sufficient and did not leak.

In the flaring procedure the end of the copper tubing is spread out to match the shape of the bevelled connection which is attached to the appliance; in this case, the central heating unit. All of the major appliances in Barner’s trailer could be operated on L.P. gas and each appliance was attached to the gas system by a flare connection. After the fire all flare connections on the appliances in the trailer (air conditioner, refrigerator, stove top/oven, water heater and central heating unit) were retrieved. Each of the experts agreed, and the trial judge noted that even the untrained eye could tell, that the flared end of the copper tubing which attached to the central heating unit was smaller, or flared less, than any of the other connections to the other appliances.

Holiday’s expert, Professor A.J. McPhate, of Louisiana State University, explained a basic trade-off which was made when any flare is created. The tubing must be spread wide enough to insure sufficient surface contact with its counterpart in the connection but the tubing cannot be spread so much as to weaken its structural integrity. The basic difference, in the expert’s opinion, concerned the sufficiency of the spread of the copper tubing that attached to the central heating unit. This connection was retrieved from the remains of the trailer and was introduced into evidence.

Bankers’ four experts each felt the flare in question was not sufficiently spread. Mr. Harold L. Myers, an expert in mechanical engineering and fire investigations, stated that the flare did not have sufficient “lip” and also that it was not seated on the matching connection when he first examined the debris of the fire. Myers said he would not recommend the use of such a flare with copper tubing because the spread was not large enough to offer either good mechanical stability or a large enough sealing surface.

The evidence of defect and causation tend to overlap to some extent. Myers pointed out that the brass nut which held the copper tubing to the central heating unit was completely melted. This condition, according to Myers, reflected that the fire began at the flare and the brass nut was melted because it was subjected to intense heat as the gas burned at the site of the leak. None of the other brass nuts on any other appliances were melted.

Mr. Robert D. Vincent, an engineer and vice-president of Suburban Manufacturing Company, the company which produced the central heating unit in Barner’s trailer, said the flare should have been larger. A.J. Constance, a licensed plumber with 30 years’ experience, stated the flare was not flared enough and that he would not knowingly use such a flare in his work. Mrs. Gladys Stubbs, the mother of Barner, was accepted by the trial court as an expert on flares based on her years of practical experience with copper tubing connections. She too stated the flare was improperly flared.

Contrary to the opinions of these four experts, Holiday’s expert, McPhate, felt the flare was properly flared. McPhate based his belief mainly on the fact that the flare had a diameter of 0.487 inches and this measurement fit within published standards for flare connections. In fact, McPhate was of the opinion that every other flare connection in the trailer was improper because each one had a diameter larger than the published standards specified.

All the connections in the trailer were tested by Holiday or Cenia before delivery to Barner and no leaks were found. However, it must be remembered that this connection was in a travel trailer. The trailer, by its very nature, was designed to be moved from place to place. In fact, Barner had moved the trailer twice since the last leak test was performed by Cenia. Each expert, when asked, indicated vibration could cause a connection to leak which had previously passed a leak test.

We find that the record fully supports the trial judge’s conclusion that the flare connected to the heater was defective.

CAUSATION OF THE HARM

Having determined that Holiday produced a defective product, the next question to be addressed is causation.

The testimony of Myers was very persuasive in determining the causal link between the defective condition and the fire which caused the harm to Barner. Myers is an expert in fire investigation, having examined more than one hundred trailer fires, and he is the only expert who examined the remains of the trailer. Myers’ investigation was basically a two-step procedure; first, determining the origin of the fire and, second, looking for a cause of the fire in the area of the origin.

The origin of the fire was determined by the pattern of the fire damage. The point of origin was fixed near the central heating unit because wooden structures around the furnace were completely consumed by the fire while the same pieces of wood were less burned farther away from the heating unit. Once the general area of origin was determined, possible causes within the area were examined.

Myers examined the electrical system of the trailer and could find no probable cause of the fire by electrical means. He also looked for, but did not find, any evidence of arson. Myers concluded that the origin of the fire was at the heater connection and the fire was caused by the defective flare allowing gas to escape and become ignited.

Vincent testified (by deposition) that he thought a leak at the flare was the most probable cause of the fire. Fire investigation, particularly when one of his companies’ products may be involved, is part of Vincent’s regular duties. Vincent’s testimony carries with it added credibility because being adverse to Holiday also makes the testimony adverse to the pecuniary interests of Suburban, Vincent’s employer.

McPhate, the defendant’s expert, never visited the scene of the fire. In fact, this was only the second trailer fire McPhate had ever investigated. McPhate was asked by the trial judge for his opinion as to the source of the fire. None of the alternatives mentioned by McPhate refuted the evidence of the source of the fire being a gas leak at the flare. McPhate stated the fire, in his opinion, started somewhere else.

In a products liability case the plaintiff must show not only a defective product of the defendant but also the causal link between the defect and the plaintiffs harm. Bankers in this case has shown both the defect in the flare and the link between the defect and the cause of the fire by a preponderance of the evidence. The trial judge’s conclusion in this regard is correct and the judgment shall be affirmed.

We hold that there has been no showing of error or abuse of discretion on the part of the trial court.

For these reasons, the judgment of the trial court is. affirmed. All costs of this appeal are to be assessed against defendant-appellee, Holiday Rambler Corporation.

AFFIRMED.


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    Lawrence J. KEATING, Jr., et al. v. Douglas A. CAMBRE, et al.
    No. 82-CA-70.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 4, 1982.
    Roland J. St. Martin, LaPlace, for plaintiffs-appellees.
    Tony C. Tillman, LaPlace, for defendants-appellants.
    Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   BOWES, Judge.

Plaintiffs-appellees have filed a motion to dismiss an appeal taken by the defendants-appellants.

The sole argument of the appellees is that the defendants have neither appeared nor filed a timely brief and that the appeal should be considered abandoned and dismissed. They cite Section 5(b) of Rule VII of the Uniform Rules of the Courts of Appeal. We do not agree with this argument.

Since July 1, 1982 the Revised Uniform Rules of the Courts of Appeal became effective and must be applied to this matter.

As provided by current Rule 2-12.12: “If the brief on behalf of any party is not filed by the date that the brief is due, the party’s right to oral argument shall be forfeited. The court may also impose other sanctions including, but not limited to, dismissal of the appeal when the appellant does not file a brief provided for in Rule 2-8.6.”

In accordance with Rule 2-8.6, should the appellant not file his brief timely, “a notice shall be mailed by the Clerk to counsel for the appellant, or to the appellant if not represented, that the appeal shall be dismissed 30 days after such notice is mailed, the appeal shall be dismissed as abandoned.”

In the ease before us, the appellant’s brief was due on September 13, 1982, however, his brief was filed on September 27, 1982. Thus, in accordance with Rule 2-12.-12, the appellants’ right to oral argument shall be forfeited. This appeal cannot be dismissed under Rule 2-8.6 since the appellants did file their brief on September 27, 1982.

For the reasons assigned, the motion to dismiss the appeal is denied.

MOTION DENIED.


author: ROY NOBLE LEE, Justice, SUGG, Presiding Justice,

text:
    Lon STRONG, Executive Director of the Mississippi Department of Wildlife Conservation; State of Mississippi Department of Wildlife Conservation v. John BOSTICK, David Sparks, Tommy Cross, Davey Hunt, William Yates, Ronnie White, W.M. Jackson, Sammy Montgomery, Byron Bennefield, David Ray Williams, Leroy Hall, Russell Crum, Neal Stroupe, Bobby Trainum, Stevie Ewing, Trelis Petree, J.W. Moore, Donald Maples, Charles Hines, Charles Green, Jack V. Pickin, W.A. Stanfield, Frank Stubblefield and Paul Stubblefield.
    No. 53649.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Rehearing Denied Nov. 10, 1982.

      Bill Allain, Atty. Gen. by Stephen J. Kirehmayr, Sp. Asst. Atty. Gen., Jackson, for appellants.
    J.B. Garretty, Corinth, for appellees.
    Before WALKER, P.J., and BROOM and ROY NOBLE LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The Mississippi . Commission on Wildlife Conservation [Commission] promulgated and adopted a regulation (recommendation) at its May 22, 1981, meeting, which established the 1981-82 “Deer Gun Seasons” and therein precluded the use of dogs as an aid for hunting deer in certain areas of the state, particularly in north Mississippi.

John Bostick and twenty-three (23) other persons filed a petition for writ of certiorari in the Circuit Court of the Second Judicial District of Hinds County, Honorable Charles Barber, presiding, contending that the State of Mississippi Department of Wildlife Conservation [Department] be commanded to send up to the court all records, proceedings and minutes of the Commission concerning the establishment and promulgation of the said regulation, and, upon the hearing, that the court declare the regulation to be null and void insofar as it made illegal the hunting of deer with the aid of dogs in the areas prohibited by the regulation. Pertinent allegations of the petition for writ of certio-rari follow:

V.
The Mississippi legislature has, by statute, set the seasons during which deer may be hunted and taken, and has prescribed the manner and means for such hunting and taking, and has not delegated the power to modify or change the said statutes except in an emergency or under urgent circumstances, and then only to the extent of closing or shortening such season.
VI.
The said regulation purports to make the act of hunting deer with the aid of a dog a criminal offense which may be punished by fine and/or imprisonment.
VII.
The commission has, by the adoption of such regulation, declared to be illegal that which the legislature has declared to be legal.
VIII.
Further, the said regulation is arbitrary, capricious, discriminatory and not based upon substantial evidence. The said regulation is overly broad, not based upon any exception authorized by law, and discriminates against the plaintiffs, and others similarly situated, in favor of other classes of deer hunters and other sections of the state.

The lower court granted the petition for writ of certiorari and held that the regulation prohibiting the use of dogs as a hunting aid in those areas of the state designated therein during the period December 19, 1981, through January 16, 1982, was void and should be rescinded and revoked for the following reasons:

II.
The Mississippi Department of Wildlife Conservation, an administrative agency of the State of Mississippi, failed to make any findings of fact in regard to the regulation in controversy.
III.
That the Court is of the opinion, based upon the record before it, that there is no substantial evidence to justify said regulation.
IV.
For that reason, it is not necessary, at this time, to reach the question as to whether or not the Mississippi Department of Wildlife Conservation has the authority to declare illegal the use of dogs as a hunting aid during the regular deer season, and defers ruling on that point, and as to whether or not the regulation was arbitrary, capricious and discriminatory.

Appellant raises several questions on this appeal, among them (1) that a demurrer should have been sustained, (2) that the wrong party was sued since the Department has no authority to adopt rules and regulations, and (3) that the proper party is the Commission which has authority to adopt rules and regulations and did adopt the regulation in controversy. We do not consider all the contentions presented in appellant’s brief, but only three (3) questions which are essential to the disposition of the case.

I.

Are the questions moot because the period during which hunting deer with dogs was prohibited has expired?

Appellees comprise twenty-four (24) individuals residing in eleven (11) counties covered by the regulation. Seventeen (17) counties in north Mississippi, and Hinds County are affected by the regulation. There are no petitioners from the other seven (7) counties. They contend that the question is moot, since the hunting season and period, December 19, 1981, through January 18,1982, has passed, and they have filed a motion to dismiss the appeal on that ground, and cite McDaniel v. Hurt, 88 Miss. 769, 41 So. 381 (1906) as authority that an appeal will not be entertained where no actual controversy is involved and a reversal would do no good. Appellees also argue that they have no desire to be burdened with the time and expense of an appeal on a moot question. Such argument finds no sympathy here.

That the questions involved in this case are of great public interest cannot be disputed. The record consists of five (5) volumes, most of which contain petitions and letters of interested citizens for or against hunting deer with dogs. The parties and the public are entitled to know whether or not the Department and Commission have the authority to promulgate and enforce regulations such as the one now before the Court, although the lower court declined to address that question. If this Court did not address the questions on the ground of being moot, the matter would never be resolved. Each year (since 1946) the Commission (formerly Mississippi State Game and Fish Commission) has met in May and, among other things, considers or sets certain hunting seasons and adopts regulations for hunting, including deer hunting. On every such occasion appellees, or other persons, might be successful in prohibiting the enforcement of these regulations and, after the periods involved had expired, contend that the questions become moot. Thus, there would never be a resolution of the issues. In Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372 (1944), the Court said:

While it is well established in this state, as well as elsewhere, that as a general rule an appeal will be dismissed when no useful purpose could be accomplished by entertaining it, when so far as concerns any practical ends to be served the decision upon the legal questions involved would be merely academic, it has, on the other hand, been broadly stated that the rule will not be applied when the question or questions involved are matters affecting the public interest. 3 Am.Jur., p. 310. That statement is made more accurate, however, by the further statement that there is an exception to the general rule as respects moot cases, when the question concerns a matter of such a nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct. See, text and authorities 4 C.J.S. Appeal and Error § 1354, pp. 1945-1947, note 24, and 38 C.J., p. 949, note 66.... [196 Miss, at 196-70, 16 So.2d at 376],

We think that the doctrine of “capable of repetition yet evading review” which has been enunciated by the United States Supreme Court beginning in 1911 with Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), is sound jurisprudence. In Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), that Court stated the doctrine is limited to the situation where the following elements combine:

(1) The challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and
(2) There was a reasonable expectation that the same complaining party would be subject to the same action again. [423 U.S. at 149, 96 S.Ct. at 349, 46 L.Ed.2d at 353],

We think that the elements set forth in Weinstein are present in the case sub judice, and we adopt the doctrine of “capable of repetition yet evading review” and hold that the questions here are not moot.

II.

Did the Commission have the authority to promulgate the regulation and was it valid and enforceable?

On July 1,1979, the State Game and Fish Commission became the Mississippi Commission on Wildlife Conservation which has exercised the duties and responsibilities of the Game and Fish Commission through the Bureau of Fisheries and Wildlife of the Mississippi Department of Wildlife Conservation. The powers and duties of the Commission are stated in Mississippi Code Annotated Section 49-1-29 (Supp.1981), which comprises sixteen (16) subsections and consumes three (3) pages. For brevity, only the first two paragraphs are set forth:

The commission is hereby authorized to make such rules and regulations, inaugurate such studies and surveys, and establish such services as it may deem necessary to carry out the provisions and purposes of this chapter. Any violation of any of the provisions of this chapter or of any rules or regulations promulgated by the commission shall constitute a misdemeanor and be punished as hereinafter provided.

The commission shall also have authority:

(a) To close or shorten the open season as prescribed by law in cases of urgent emergency on any species of game birds, game or fur-bearing animals, reptiles, fish or amphibians, in any specified locality or localities, when it shall find after investigation and public hearing that such action is reasonably necessary to secure the perpetuation of any species of game birds, game or fur-bearing animals, reptiles, fish or amphibians and the maintenance of an adequate supply thereof. The statutes governing such subjects shall continue in full force and effect, except as further restricted and limited by the rules and regulations promulgated by the commission.

As will be discussed hereinafter, the record indicates that the deer population in the subject area of north Mississippi, after investigation and public hearing, had become dangerously low, and that the regulation prohibiting hunting with dogs was reasonably necessary for protection and perpetuation of the deer.

Mississippi Code Annotated § 49-7-31 (Supp.1981) fixes the open seasons on game birds and game animals, i.e., when they may be lawfully hunted. However, the section expressly delegates to the commission seven (7) areas of authority in setting hunting seasons. For example: (1) the commission shall, in its discretion, fix the season on wild turkeys; (2) on deer, the commission may open the season not to exceed sixty (60) days in the aggregate between November 10 and January 15 in any county after public notice has been made and public hearing has been held concerning said season; (3) the commission is authorized to set and regulate the deer seasons on wildlife management areas administered by the commission; (4) the commission may permit the killing of doe deer in localities where it is necessary to thin the stock of existing deer; (5) the commission may designate areas of the state in which the killing of antlerless deer may be permitted or limited; (6) the commission may fix the open season on fur-bearing animals between November 1 and March 1 and for hunting opossums, raccoons and bobcats with dogs and guns by licensed hunters from October 1 to February 28; (7) provided, further, the game and fish commission may establish closed seasons on running, hunting, chasing, or pursuing with dogs of raccoon, opossums, or other wild animals or wild birds during turkey season in designated areas.

The section above simply grants the right to hunt during certain times of the year and does not define times and methods of hunting as illegal.

Reference is made to Mississippi Code Annotated § 49-7-37 (Supp.1981), which establishes special open seasons on deer with falcons or hawks, bow and arrow, or primitive weapons, only to point out authority delegated to the commission in four instances: (1) “... The commission is authorized, in its discretion, to extend the special archery seasons on any public hunting projects, game refuges or prescribed areas having surplus deer populations.. (2) A special hunting season with primitive firearms to hunt deer is fixed between regular deer seasons in areas deemed by the commission to have surplus deer population; (3) The commission may designate areas of the state in which the killing of antlerless deer may be permitted or limited; and (4) The commission is “further authorized to make reasonable rules and regulations concerning said special seasons, concerning the use of falcons and hawks, and concerning bow and arrow and primitive firearms hunting in any season which it may deem necessary and proper.”

Mississippi Code Annotated § 49-7-45 (Supp.1981) complements Section 49-7-31 and declares certain acts to be unlawful, particularly those enumerated in seven (7) subsections. Subsection (a) of the act provides the following:

It shall be unlawful for any person:

(a) Except in the defense of person or property or in eradicating disease among animals, to hunt or chase or to shoot at or kill or to pursue with the intent to take, kill or wound any wild animal or wild bird with firearms or devices of similar description or through the use of traps or by nets or snares or by the use of dogs except during the open season, in the number, by the means and in the manner herein specifically permitted, and then only after first having secured a license and a license tag to so hunt or trap, as the case may be. No person shall hunt, take, kill or wound any game animal (except rabbits, opossums, raccoons or deer) or game birds by any means, except by the aid of a dog, the use of decoys and/or with a gun not larger than 10 gauge and capable of being fired from the shoulder. Nor shall any person hunt, take, wound or shoot at any game bird from a power boat, sailboat or any boat propelled otherwise than by hand, nor except in waters of the gulf coast from any sinkbox or battery.

The first part of subsection (a) makes it unlawful to hunt as indicated therein, except during open seasons and with a hunting license. The grammatical breakdown of the subsection follows:

(a) Except in the defense of person or property or in eradicating disease among animals
IT SHALL BE UNLAWFUL FOR ANY PERSON:
... to hunt or chase or to shoot at or kill or to pursue with the intent to take, kill or wound any wild animal or wild bird
with firearms or devices of similar description
(or)
through the use of traps or by nets or snares
(or)
by the use of dogs
except during the open season in the number, by the means and in the manner herein specifically permitted, and then only after first having secured a license and a license tag to so hunt or trap,, as the case may be.

The statute attempts to cover every possible method of hunting and two exceptions — one at the beginning of the section and the other at the end — are created. They provide that the killing of any animal is prohibited unless (1) it is in defense of the person or property, or (2) during the open season with a hunting license. Therefore, the section cannot reasonably be read or construed to mean that the legislature specifically provided that dogs shall be' hunted during the open deer season and that the regulation adopted by the Commission is in conflict with an express legislative act.

We are aware that administrative agencies have only such powers as are expressly granted to them or necessarily implied, and any such power exercised must be found within the four corners of the statute under which the agency operates. Mississippi Milk Commission v. Winn-Dixie, 235 So.2d 684 (Miss.1970).

42 C.J.S. Implication at 405 (1944), discusses the matter:

The term is more restricted than mere “implication,” it refers to a logical, not a physical, necessity, and implies that no other interpretation is permitted by the words of the instrument construed; and so has been defined as meaning an implication which results from so strong a probability of intention that an intention contrary to that imputed cannot be supposed; that which leaves no room for doubt; ....
* Hs sfc sfc sfc *
The doctrine of “necessary implication” finds frequent application in the construction of statutes... .

Mississippi Code Annotated § 49-4-1 (Supp.1981) declared the purpose of the department as follows:

It is hereby declared to be the intent of the legislature to conserve, manage, develop and protect our natural resources and wildlife for the benefit of this and succeeding generations by reorganizing the natural resource and wildlife conservation functions of state government into the Mississippi Department of Natural Resources and the Mississippi Department of Wildlife Conservation thereby providing more effective organizations through which the methods of conserving, managing, development and protecting our natural resources and wildlife can be analyzed, coordinated and implemented.

In Russell v. State, 220 So.2d 334 (Miss.1969), the Court recognized that the power granted to the Mississippi State Game and Fish Commission (now Mississippi Commission on Wildlife Conservation), pursuant to Section 5844, Mississippi Code 1942 Annotated [now Mississippi Code Annotated § 49-1-29 (Supp.1972) ], to adopt rules and regulations in the area of game and fish conservation, a violation of which constitutes a misdemeanor, was not an unconstitutional delegation of law-making power. The Court said: “Legislation of this type has been held to violate neither the United States nor the Mississippi Constitution.” [220 So.2d at 339], and cited Lacoste v. Department of Conservation, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437 (1924) and Mississippi Milk Commission v. Vance, 240 Miss. 814, 129 So.2d 642 (1961).

In Lacoste, the State of Louisiana passed a statute levying a severance tax on the value of all furs and skins taken from wild animals within the state, and directed that the tax be paid through the State Department of Conservation, which issued regulations requiring labeling of the furs as a means of enforcing the tax. Unlabeled furs were prohibited from being shipped. La-coste protested the tax and asserted that the legislative authority was improperly delegated to the Department of Conservation.

The United States Supreme Court dismissed the claim as without merit, noting that the state had sovereign ownership of wild animals within its borders, and that the measure was a “police regulation, not a revenue act” passed to protect and conserve the fur-bearing animals and was not imposed in an arbitrary and unreasonable manner. As in the ease sub judice, the regulation was based on biological data and was enacted for a specific problem area where the animal population was in danger.

We conclude, after reviewing the applicable statutes and considering the implication and inferences flowing therefrom, that the Commission has the authority, and, under certain situations, the duty, to promulgate rules and regulations concerning the taking of deer, where they do not conflict with existing statutes. To hold otherwise would make a shambles out of the Department of Wildlife Conservation.

III.

Did the lower court err in holding the regulations adopted by the Commission to be void because no finding of fact was made, and there was no substantial evidence to justify the same?

Although the Commission did not make a finding of fact, the record is replete with biological data and evidence to support the adoption of the regulation.

(1) The district biologist’s deer herd data for northeast Mississippi, covering twelve of the counties involved, indicates via track count and browse survey the low population of deer, and a ten-year deer kill count attached to his report is an item which justifies the Commission’s action in reducing pressure on deer in the area.

(2) Allowance of deer north of Highway 32 compared with deer south of Highway 32 as follows:

9. The deer population is much lower on the area North of Hwy 32.
Recent track counts were conducted on 5 miles of dirt roads on each area. The results were as follows:
North of Hwy 32 — 38 tracks/5 miles road.
South of Hwy 32 — 166 tracks/5 miles road.
Browse surveys were also conducted on each area featuring four preferred deer
foods. Percentages show amount of plant parts that were browsed by deer. Twenty plot samples were taken at 5 chain intervals on each area. The results are as follows:
North of South of Hwy 32 Hwy 32
Honeysuckle (Lonicera japónica) 4% 10%
Green Briar (Smilax sp.) 3% 11%
Trumpet Creeper (Campsis radicans) 2% 13%
Dog Wood (Cornus florida) 2% 8%
10. Many complaints have been made by hunters about deer population being too low on the area North of Hwy 32. The deer population North of 32 should increase to the same level as that South of Hwy 32 if the dog pressure is removed.

(3) A statistical breakdown of 1979-80 deer kill indicated justification for the regulation.

The biological data was uncontra-dicted in the record and evidenced a substantial basis for adoption of the regulation. In Mississippi State Tax Commission v. Miss.-Ala. State Fair, 222 So.2d 664 (Miss.1969), the Court said:

We are therefore confronted with the question: Can the administrative agency, the Tax Commission, and a taxpayer, in a hearing before the Commission, do that which the Legislature has no power to do and has not done, that is to say, by an agreement confer jurisdiction upon the circuit court to retry, de novo, the issue of the assessment and collection of taxes required to be determined by the Tax Commission? The answer to that query is, of course, in the negative.
* * * Sj! * *
In the instant case there is no “transcript of the testimony before said Commission,” and since we may not consider the evidence given in a de novo hearing, the only récord we have which has been properly appealed to this Court is the order of the Tax Commission denying the claim of the taxpayer to an exemption under the amusement tax assessment. The judgment of the Circuit Court on the de novo hearing must therefore be set aside and judgment entered here affirming the order of the Tax Commission. [222 So.2d at 666-667],

In County Board of Education v. Parents & Custodians of Students at Rienzi School Attendance Center, 251 Miss. 195, 168 So.2d 814 (1964), the Court held that there is a rebuttable presumption in favor of the action of an administrative agency and the burden of proof is upon those challenging its actions.

The Commission adopted the regulation to prohibit use of dogs as a hunting aid in the areas involved here for the purpose of conserving and increasing the deer population in such areas. We conclude that the action of the Commission was not arbitrary, capricious, and discriminatory, and that it was supported by substantial evidence.

Wild game (and fish) probably have contributed more to the livelihood and development of mankind than any other natural resource. Without them, primitive man could not have existed. They supplied the American Indians with food, clothing and shelter. Pioneers depended upon game and fish for their sustenance and their economy was founded upon them.

During the early days of American history, wars evolved from disputes over hunting grounds and trapping territories. Also, they were the subject of treaties and settlements. Even today, controversies seethe and treaties are negotiated concerning fishing rights on the seas and hunting (seals and whales) rights in the Arctics and elsewhere. Fishing vessels from Russia, Japan and other countries ply the oceans of the world and even fish and hunt within sight of our own shores.

We once thought the oceans to be limitless with sea life, and now know that they can be exhausted by man. Bison once roamed the plains of America in thundering herds, but now are practically extinct. Forests, where game of all kinds was formerly found in abundance, now produce none. Many animals and a great deal of game are included in the endangered species.

In this situation, it is essential that the State protect, husband and propagate wildlife for the benefit of all its people. The arm of the State for effecting that purpose is the Department of Wildlife Conservation and the Commission on Wildlife Conservation. This Court aptly said in Ex Parte Fritz, 86 Miss. 210, 38 So. 722 (1905):

It is held with practical unanimity in all jurisdictions that animals ferae naturae are not the subject of private ownership until reduced to actual possession; that the ownership of such animals, so far as they are capable of ownership, is in the state, not as proprietor, but in its sovereign capacity, as the representative and for the benefit of all its people in common; and that the state may regulate and restrict the taking of such animals, or absolutely prohibit it, if deemed necessary for their preservation or for the public good. [86 Miss, at 218, 38 So. at 723].

Many men, including this writer, feel that a person who has never seen squirrels jump from limb to limb in the deep swamp on a frosty Fall morning; or has never heard a wildf turkey gobble in April or seen him strut during mating season; or has never watched a deer bound through the woods and fields, or heard a pack of hounds run a fox, or tree a coon (raccoon); or has never hunted the rabbit, or flushed a covey of quail ahead of a pointed bird dog; or has never angled for bass or caught bream on a light line and rod, or taken catfish from a trotline and limb hook; has never lived.

Present generations owe posterity the obligation to protect and conserve wildlife, a valuable and essential natural resource, in order that future generations may have game and fish for their enjoyment, pleasure and benefit. The many sportsmen may not override rights of the few, nor may small groups impose their selfish wants against the will of the large. The main thread and principle in this case involve the authority of appellants to act for the accomplishment of those purposes.

The judgment of the lower court is reversed and judgment is rendered here for appellants.

REVERSED AND RENDERED.

PATTERSON, C.J., WALKER, P.J., and BROOM, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

SUGG, P.J., dissents.

SUGG, Presiding Justice,

dissenting:

I concur with Part I of the majority opinion holding the question presented on this appeal is not moot. I dissent from the holding of the majority under Part II that the Commission had the authority to promulgate the regulation in question for two reasons. First, the regulation is contrary to the provisions of section 49-7-45 Mississippi Code Annotated (Supp.1981), and second, the legislature may not delegate power to an administrative agency to define a crime.

At the outset, I recognize that the regulation of hunting and fishing involves highly emotional issues; however, legal principles must be determined on the basis of law and not emotions.

I

In my opinion, the regulation is in conflict with section 49-7-45 Mississippi Code Annotated (Supp.1981) which follows:

It shall be unlawful for any person:
(a) Except in the defense of person or property or in eradicating disease among animals, to hunt or chase or to shoot at or kill or to pursue with the intent to take, kill or wound any wild animal or wild
bird with firearms or devices of similar description or through the use of traps or by nets or snares or by the use of dogs except during the open season, in the number, by the means and in the manner herein specifically permitted, and then only after first having secured a license and a license tag to so hunt or trap, as the case may be. No person shall hunt, take, kill or wound any game animal (except rabbits, opossums, raccoons or deer) or game birds by any means, except by the aid of a dog, the use of decoys and/or with a gun not larger than 10 gauge and capable of being fired from the shoulder. Nor shall any person hunt, take, wound or shoot at any game bird from a power boat, sailboat or any boat propelled otherwise than by hand, nor except in waters of the gulf coast from any sinkbox or battery.

The second sentence has no application because it specifically excepts hunting of deer.

The first sentence of the statute prohibits hunting, chasing, shooting at, killing, or pursuing with the intent to take, kill or wound any wild animal or wild bird with

(a) firearms or devices of similar description, or
(b) through the use of traps, or
(c) by nets or snares, or,
(d) by the use of dogs,

except during the open season, in the number, by the means and in the manner herein specifically permitted, and then only after first having secured a license and a license tag to so hunt or trap, as the case may be.

To put the question in proper perspective, it is necessary to restate the sentence with application to hunting deer by dogs. If this is done the sentence would read as follows:

It shall be unlawful for any person . .. to hunt any wild animal (this includes deer) ... by the use of dogs except during the open season ...

When broken down into, its component parts the statute clearly permits hunting wild animals (this includes deer) with dogs during an open season.

For purpose of comparison, let us suppose that the Commission, instead prohibiting the hunting of deer by dogs, had prohibited the hunting of quail by dogs. Restating the sentence with application to hunting quail by dogs the statute would read as follows:

It shall be unlawful for any person ... to hunt any wild bird (this includes quail) ... by the use of dogs except during the open season....

If a regulation has been adopted by the Commission prohibiting hunting quail with dogs, I do not think it would be seriously argued that the Commission had the authority to adopt such a regulation.

If the Commission can prohibit hunting deer by use of dogs in open season, then it could likewise prohibit hunting quail by the use of dogs during open season. Many other examples could be given, but the one given pertaining to hunting of quail by dogs is sufficient to demonstrate that the Commission simply exceeded its authority. It adopted a regulation contrary to what is permitted by statute.

Even though the Commission is given broad powers, it is not given the power to repeal a statute. The only statutory authority that the Commission has for prohibiting hunting by dogs is found in sections 49-7-31(e) and 49-7-32 Mississippi Code Annotated (Supp.1981).

Under section 49-7-31(e) the Commission may fix the open season on opossums, raccoons, and bobcats with dogs and guns between October 1 and February 28 of the year following; however, such animals may be hunted with dogs throughout the year, but the Commission may close certain areas to dog hunting during the turkey season.

Section 49-7-32 authorizes the Commission to establish closed seasons on the running, hunting, chasing or pursuing with dogs of raccoon, fox or other wild animals or wild birds during turkey season in designated areas. Other statutes make it unlawful to hunt with guns or dogs on any sanctuary or preserve (49-5-5), to hunt with guns or dogs on Sunday, section 49-7-61 and to hunt with dogs during any special hunting seasons enumerated in 49-7-37(1)(2) and (3).

No other statute gives the Commission authority to prohibit hunting wild birds or animals with dogs during open season.

I am in sympathy with the purpose the Commission is trying to accomplish but do not believe that it has the authority to make a regulation in conflict with the statute.

II

The majority opinion also holds that the delegation of power to the Commission is constitutional and relies on Russell v. State, 220 So.2d 334 (Miss.1969). It is true this case held that the legislature may delegate authority to the Commission to make rules and regulations pertaining to hunting and fishing. However, this case is in conflict with a later case, Howell v. State, 300 So.2d 774 (Miss.1974), where we held that a portion of the Uniform Control Substances Act which granted the State Board of Health, an administrative agency, the authority to change controlled substances from one schedule to another, to add controlled substances to the schedules, and to delete controlled substances from the schedules was an unconstitutional delegation of power vio-lative of Article I, section 1 and Article IV, section 33 of the Mississippi Constitution of 1890. We held that the power to define crimes is vested exclusively in the legislature and it may not delegate that power either expressly or by implication to an administrative agency.

Howell applies to this case because a violation of the regulation in question constitutes a violation of law thus giving an administrative agency the power to define crimes, a power that is vested exclusively in the legislature.

I therefore dissent for the reasons stated.

      . The question is presented and argued in the briefs.

      . Russell v. State was not mentioned or overruled in Howell v. State, 300 So.2d 774 (Miss.1974), which case dealt with a violation involving a controlled substance.

      . In the future, the Commission and Department, in their respective areas, should make a complete record to support the regulations adopted and action taken, and should make a finding of fact as to each regulation in order to obviate questions raised, such as in this case, and to facilitate the work of the courts in disposing of such questions.


text:
    John C. HARRIS v. STATE of Mississippi.
    No. 53749.
    Supreme Court of Mississippi.
    Oct. 27, 1982.
    Sanders, Sanders & Clark, Alix H. Sanders, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Carroll County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, HAWKINS, DAN M. LEE and PRATHER, JJ., concurring.


text:
    OGDEN MANAGEMENT COMPANY, INC. v. Renetta T. THOMPSON.
    No. 53458.
    Supreme Court of Mississippi.
    Oct. 27, 1982.
   Appeal from Circuit Court, Monroe County; Neal Biggers, Judge.

Patterson & Patterson, Robert D. Patterson, Michael P. Mills, Aberdeen, for appellant.

Carnathan & Malski, Tim Ford, Michael C. Malski, Amory, for appellee.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS and DAN M. LEE, JJ., concurring.


author: DAN M. LEE, Justice,

text:
    AN ATTORNEY v. MISSISSIPPI STATE BAR.
    Conf. Misc. No. 68.
    Supreme Court of Mississippi.
    Oct. 27, 1982.
    Guy C. Faggard, Pascagoula, for appellant.
    Jimmy Miller, Andrew J. Kilpatrick, Jr., Jackson, for appellee.
   DAN M. LEE, Justice,

for the Court:

Appellant appeals from a disciplinary action instituted by the Mississippi State Bar predicated on the filing of a complaint by his son. The disciplinary action stemmed from the alleged conduct of appellant in administering the estate of his former wife, deceased, whereby he allegedly made misrepresentations of matters to his minor chil-> dren, unauthorized purchases on their behalf and commingled the children’s funds with his own. At the conclusion of the hearing, the complaint tribunal found the formal charges of the committee on complaints of the bar well taken and amply supported by the record. Appellant was therefore suspended from the. practice of law for three years. We reverse.

Appellant’s former wife was killed in an automobile accident on December 27, 1977. She was survived by her two children, a son and a daughter, ages nineteen and seventeen respectively at the time of their mother’s death.

On February 2, 1978, appellant filed a petition for letters of administration in the matter of the estate of his former wife, setting forth that the main asset of the estate was .the unliquidated claim for her wrongful death. On February 9, 1978, letters of administration of her estate were issued to appellant as administrator of the estate, not as the attorney thereof. Appellant was subsequently removed as administrator of the estate upon petition filed by the minor children. He was directed to file an inventory and accounting by September 12, 1979. On October 16, 1979, the substituted administrator filed a petition for. contempt citation against appellant for. failure to file an inventory on November 13, 1978; however, upon motion of the substituted administrator, the first annual accounting and inventory were stricken. The chancery court took no further action on the contempt petition and had no active role in bringing the complaint against appellant. The chancellor found, upon substituting Robert Hadden as administrator, that “there was much bad blood between the minors and the administrator” which had reference to the family relationship. An amended inventory was subsequently filed by appellant on February 7, 1980, and approved by the court on April 17, 1980.

Approximately $11,800 passed through the estate. These funds were derived from a life insurance policy in the amount of $10,000 and $1800 from decedent’s insurance policy on her automobile. Four life insurance checks payable to decedent’s children were also issued following her death. Three of these checks were payable to the son in the following amounts: $20,000, $9,000 and $20,380.20. The remaining check was payable to the daughter in the amount of $20,380.20. According to appellant’s children, they endorsed the checks at his request with the understanding that all the proceeds therefrom were required to go into their mother’s estate. Appellant denied this. He thereafter deposited the three checks payable to his son into his office trust account. The check payable to his daughter was deposited into an account referred to as the house account, at the address where decedent had lived prior to her death and where the children continued to live thereafter.

Appellant offered into evidence various cancelled checks from three accounts, contending the monies spent were invested or spent for the use and benefit of the children. Three checks were offered from June 12, 1978, to July 6, 1978, aggregating $23,317, for stock account purchases in appellant’s name. These checks were drawn on appellant’s office trust account. According to appellant, this purchase was made with full knowledge and consent of the children. The children denied this. The stock account was later transferred to the children on June 23, 1980.

Appellant also purchased a piece of property referred to as the camp, with funds derived from his office trust account. He contended again this was done with his children’s consent and for their benefit. Title to the property was in appellant’s name and was later transferred to his son’s name. A $6,000 cancelled check was offered as evidence of the purchase.

Appellant offered into evidence 108 checks written on the house account, totaling $8,376.21. Fifteen checks were payable to his son for a total of $760. Twenty-three checks were payable to his daughter for a total of $2540. The remaining checks were payable to appellant, cash, the Elks Club and other third parties. Appellant contended all the checks were written for the use and benefit of his children.

Appellant also offered into evidence thirty-three checks drawn on his office account in the aggregate amount of $2,233.04. Two of the thirty-three checks were payable to his son for a total of $250 while only one of the checks was payable to his daughter in the amount of $250. The remaining checks were written to third parties. Appellant likewise contended here that all of the checks were written for the use and benefit of his children.

Seven checks from appellant’s office trust ■ account were introduced into evidence for a total of $1,121.90. Two checks were payable to appellant’s son for a total of $246.90. Three checks were payable to the daughter for an aggregate of $775. The remaining cheeks were payable to third parties. Appellant contended that these checks were written for the use and benefit of the children.

The total amount of documented payments, including stock account purchases, payments to cash, appellant, and third parties, represented $41,048.14 or, at the most $48,807, of the $61,760 received by appellant.

Appellant testified his inability to document the total amount received by him from the bhildren’s insurance checks was due to break-ins at his office by the children, the fact that the bank statements from the house account went to his children’s residence and, finally, the fact that he often advanced cash to his children when they needed it, later deducting the same from monies held for the children’s use.

The complaint tribunal found appellant occupied both a fiduciary and attorney/client relationship with his two children and had breached that relationship by commingling funds and property admittedly belonging to his children. Finding the formal charges of the Committee on Complaints of the Mississippi State Bar well taken, and amply supported by the evidence, the complaint tribunal suspended appellant from the practice of law for a period of three years.

I. Did the complaint tribunal err in finding an attomey/client relationship between appellant and his children?

Upon the death of his former wife, appellant was contacted by his children and asked to handle their mother’s business. He agreed, as any father would, to handle the estate and was subsequently approved by the chancery court and appointed administrator of his former wife’s estate. The estate was apparently opened primarily for the institution of a wrongful death action for the wife’s death. Guy C. Faggard was employed by the estate to bring this suit which was finally settled for $100,000.

Appellant never acted as attorney for the estate. He acted solely as administrator until his removal therefrom upon petition of the children. He received no remuneration for serving as administrator. The proof in the present case wholly failed to establish the relationship of attomey/client between appellant and his children. The only relationship established by the evidence was a biological fiduciary relationship between appellant and his children which existed only because of the relationship of the parties. The complaint committee, the complaint tribunal and this Court should not sit in judgment of whether appellant was a good or bad father. That was not and could not be the issue.

The record is replete with the wasteful nature of the children, evidenced by the fact that they spent approximately $115,000 in some eighteen months. At the time this complaint was filed, the only property remaining from the children’s inheritance consisted of the property appellant had invested in for the children and titled in his name.

Appellant, as the children’s father, had a legitimate concern over the children’s welfare. It was also his duty, as their father, to contest their spending habits, urging them to conserve a part of their inheritance for future needs. Knowing the nature and habits of his children, he attempted to police their spending activities in an effort to prevent the children from squandering their entire inheritance.

The present controversy erupted only when the money was gone except for that which appellant had invested. The dispute was merely a family squabble which was evidenced by the fact that the children sought to dismiss the proceedings against appellant by letter dated November 21, 1979.

Because the proof was totally insufficient to establish an attorney/client relationship between appellant and his children, the complaint tribunal erred in taking disciplinary action against appellant.

Because we have concluded that the evidence failed to establish an attorney/client relationship, we decline to address the remaining assignments of error on direct and cross-appeal.

REVERSED AND COMPLAINT DISMISSED ON DIRECT APPEAL; AFFIRMED ON CROSS-APPEAL.

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

PRATHER, J., took no part.


author: PRATHER, Justice,

text:
    Tilghman FRANKLIN d/b/a Colt Lumber Co. v. LOVITT EQUIPMENT CO., INC., A Mississippi Corporation.
    No. 53559.
    Supreme Court of Mississippi.
    Oct. 27, 1982.

      William L. Ducker, Purvis, for appellant.
    Pope & Pope, Moran M. Pope, III, Hat-tiesburg, for appellee.
    Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The appellant, Tilghman Franklin, filed a bill of complaint in the Chancery Court of Lamar County to recover damages resulting from fraudulent misrepresentations made by a sales employee of Lovitt Equipment Company. Franklin based his claim on the fact that he purchased a John Deere front-end loader which was represented as a 1973 model when in fact it was a 1968 model. After considering the evidence presented, the chancellor below dismissed the cause of action and ruled that Franklin had failed to prove fraud in the inducement of the contract. From that dismissal, the appellant raises the following issues:

(1) That the lower court committed error in sustaining the appellee’s objections to the parol evidence of witnesses present at the time of the transaction since their testimony allegedly proved fraud on the part of the appellee and its agent; and

(2) That the lower court committed error in failing to find fraud on the part of the defendant, and thereby concluding that the parties’ purchase security agreement constituted the complete and exclusive statement of the terms agreed to by the parties.

I.

On April -24, 1979, Lovitt Equipment Company sold Tilghman Franklin a John Deere Model 544 front-end loader for use in Franklin’s sawmill operation known as Colt Lumber Company. The parties finalized the transaction by executing a Purchase Security Agreement and a Uniform Commercial Code Financing Statement. These two documents were the only memoranda signed by the parties, and they reflected the type of machine (front-end loader), the manufacturer (John Deere), the model (544); the serial number and the signatures of Lovitt and Franklin. The Purchase Security Agreement also contained an “integration” clause stating that the document itself constituted the entire agreement of the parties.

At the trial of this case, the chancellor permitted Franklin and two witnesses on Franklin’s behalf to testify about the events surrounding the purchase of the equipment, and about the alleged fraudulent statements made by the Lovitt employee. This evidence was objected to on the basis that consideration of such testimony would violate the parol evidence rule set forth in section 75-2-202 of the Mississippi Code Annotated (1972), but the chancellor reserved his ruling on that matter. Upon conclusion of the hearing, Lovitt’s attorney called attention to the prior objections against the parole evidence, and requested that the chancellor rule on the question. The chancellor, at that time, asked for briefs on the legal issues involved in the lawsuit, including the question of parol evidence, but the record does not reflect any final ruling by the chancellor on that particular issue. Nor does the final decree dispose of the parol evidence question.

During the hearing, Franklin testified that Herman Rowley was the Lovitt sales representative who showed Franklin the front-end loader. When Franklin inquired about the make and year of the equipment, Rowley responded that it was a 1973 John Deere 544 front-end loader. Moreover, two of Franklin’s friends were also present at this inspection, and they both testified that Rowley made the statement in question. Franklin then told Rowley that he would purchase the equipment if it worked properly during a trial period. Rowley agreed to that offer, and Franklin took the machine for a two-week trial period. Following a satisfactory performance, Franklin purchased the front-end loader.

On the basis of the above evidence, the chancellor below ruled that the complainant had failed to sustain his burden of proof in showing the requisite elements of fraud, and therefore, dismissed the cause of action.

IIA.

The first issue to be considered is whether parol evidence is admissible to show fraud in the inducement where the parties have entered into a written agreement which specifically states that it is the complete and exclusive statement of the terms agreed to. Section 75-2-202 of the Mississippi Code Annotated (1972) requires application of the parol evidence rule under most circumstances, and it provides as follows:

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
(a) by course of dealing or usage of trade (Section 1-205) [§ 75-1-205] or by course of performance (Section 2-208) [§ 75-2-208]; and
(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement. (Emphasis added).

Prior to enactment of the Uniform Commercial Code as a part of our statutory law, it was a well-established principle that where fraud was alleged with respect to the formation of a written contract, the parol evidence rule would not bar consideration of a contemporaneous oral agreement. Byrd v. Rees, 251 Miss. 876, 171 So.2d 864 (1965); Stirling v. Logue, 154 Miss. 812, 123 So. 825 (1929); English v. New Orleans & N.E. R.R. Co., 100 Miss. 809, 57 So. 223 (1912). Further, section 75-1-103 of the Mississippi Code Annotated (1972) explicitly provides that the common law principles of fraud and misrepresentation should supplement the commercial code provisions. On the basis of this background, our Court has continued to recognize the fraud exception to the parol evidence rule subsequent to the passage of section 75-2-202. See Noble v. Logan-Dees Chevrolet-Buick, Inc., 293 So.2d 14 (Miss.1974) (“where parties, without any fraud or mistake, have deliberately put their contract in writing, the writing is not only the best, but the only, evidence of their agreement”). Thus, we conclude that the chancellor was required to consider the testimony offered by Franklin and his friends.

IIB.

Related to the first issue above is the appellant’s claim that the chancellor failed to consider the parol evidence offered by Franklin to show fraud. However, the record clearly indicates that the testimony in question was permitted to be introduced into evidence, even though, the chancellor reserved his ruling on its admissibility. Although the chancellor never ruled on this issue, it must be assumed that he considered the parol evidence in rendering his final decision.

Judge Griffith, in his treatise on Mississippi Chancery Practice, discussed the assumptions to be made where evidence has been objected to, but a ruling on its admissibility has been reserved, as follows:

The objector must, before the testimony finally closes or at least before the argument, make a formal request for a ruling; so that, if during the taking of evidence an objection be made and the court reserve ruling on the objection and there be no ruling thereon thereafter made nor any request for such ruling, then because no such request is made the objection must be deemed as waived, although if such request had been made the objector would have been entitled to a ruling before the close of the evidence. In the absence of a request for a ruling excluding the evidence the offerer is entitled to have it considered and to rely on it, and the objector will have no right to further insist on the objection either in the argument or on appeal, for he has waived it. If upon the request the court admits the evidence, or still declines to rule, the assumption is then, in either event, that the evidence in question was considered and had some effect in influencing the decision and is therefore in a measure involved on appeal. (Emphasis added).

V. Griffith, Mississippi Chancery Practice § 583 (2d ed. 1950). Our Court has also applied this assumption in the case of Banks v. Banks, 118 Miss. 783, 79 So. 841 (1918), wherein the Court stated:

This court allows some latitude to a chancellor in admitting evidence, on the theory that he can discriminate between competent and incompetent evidence; but, where the chancellor admits incompetent evidence, it should be excluded before the judgment, and if he admits evidence, and does not exclude it, it would be fair to assume that the evidence had some effect in influencing his judgment. (118 Miss, at 788, 79 So. at 842).

Following these authorities, we choose to assume that the chancellor below considered the parol evidence in question, and therefore, the appellant’s first contention is without merit.

III.

The appellant’s other contention is that the chancellor erred in failing to find fraud on the part of the defendant. In order to establish fraud, the plaintiff must prove (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Hamilton v. McGill, 352 So.2d 825 (Miss.1977); McMahon v. McMahon, 247 Miss. 822, 157 So.2d 494 (1963); Anderson Dunham, Inc. v. Aiken, 241 Miss.' 756, 133 So.2d 527 (1961). Furthermore, under Mississippi law, these elements must be shown by clear and convincing evidence. Parker v. Howarth, 340 So.2d 434 (Miss.1976); Crawford v. Smith Bros. Lumber Co., Inc., 274 So.2d 675 (Miss.1973).

In the case sub judice, the record indicates that Lovitt’s sales representative may have given an incorrect year model for the front-end loader in question. Nonetheless, it does not appear that Franklin relied on that incorrect statement. In fact, Franklin only chose to purchase the machine after satisfactory performance during a two-week trial period. Further, the machine was employed by the Colt Lumber Company without complaint. Under these circumstances, it cannot be said that the chancellor erred in determining that Franklin failed to establish the necessary element of reliance. This Court will not now substitute its judgment as to the weight and credibility of the evidence for that of the chancellor. We therefore find that there is no merit in this assignment of error.

AFFIRMED.

PATTERSON, C.J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, HAWKINS, BOWLING and DAN M. LEE, JJ., concur.


author: BOWLING, Justice,

text:
    PHILLIPS CONSTRUCTION COMPANY, INC. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 53641.
    Supreme Court of Mississippi.
    Oct. 27, 1982.
    Cox & Dunn, Vardaman S. Dunn, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frank E. Shan-ahan, Jr., Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P.J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This appeal involves the State Highway Arbitration Board organized pursuant to Chapter 511, Laws of 1972, and becoming effective on May 22, 1972. It is set out in detail under Section 65-2-1, Mississippi Code 1972 Annotated, et seq. The reason for the law according to Section 65-2-1 was that public policy required that it be “necessary and essential in the public interest to facilitate the prompt, peaceful, and just settlement of conflicts and disputes arising out of contracts between the state highway department and the various contractors with whom it transacts business.... ” The law provides for an arbitration board of three members appointed by various departments and agencies, a discussion of which is not necessary in this appeal. The statute provides that the board has jurisdiction to hear matters concerning $25,000 or less without regard to the size of the contract. [MCA § 65-2-5 (1972) ]. The procedure then provides for a hearing in the event there is a dispute between the contractor and the highway commission. The arbitration board, after the hearing at which the testimony is transcribed, makes its decision. Its order may be appealed by either party to the circuit court. [MCA § 65-2-15 (1972) ]. Provisions of the appeal procedure provide “Either party to the dispute may within fifteen (15) days from the date such order is filed with the clerk of the court petition the circuit court of any county in which the contractor operates or has an office or place of business, for a review of such order .... ” The statute goes on to provide four grounds on which an appeal may be taken from the arbitration board’s decision.

Appellant Phillips Construction Company, Inc. presented its claim in a proper manner to the arbitration board for funds it contended it was owed by the Mississippi State Highway Commission. The claim grew out of a contract to do certain highway construction work in Itawamba County, Mississippi. Phillips contended that through no fault of its own, they were forced to incur extra expenses to complete the work. We will not relate a detailed summary of the contentions of either party in the claim presented to the arbitration board as they are not relevant to a disposition of this appeal. It suffices to say that the arbitration board, after a full hearing, found that the State Highway Commission should pay Phillips Construction Company the sum of $16,675.37.

The State Highway Commission appealed the arbitration board’s award to the Circuit Court of the First Judicial District of Hinds County. At the same time, an appeal was attempted to be perfected to the Circuit Court of Itawamba County, which cause was consolidated into the Hinds County Circuit Court proceedings. It was the Commission’s primary contention on appeal that the arbitration board did not have sufficient evidence presented to it to support its award. The circuit court found that the arbitration board did not proceed as required by statute and ordered that the entire cause be remanded to the arbitration board for another hearing.

Appellant Phillips Construction Company, Inc., contends here that the Highway Commission did not perfect its appeal according to the requirements of the appeal statute and for that reason the Circuit Court of the First Judicial District of Hinds County did not have jurisdiction to hear the appeal. We agree.

MCA § 65-2-15 (1972) “Appeal to Circuit Court” makes a specific requirement that “the party bringing the appeal shall be required to place a supersedeas bond in an amount to be determined by the circuit judge.”

Appellee Highway Commission contends that as the Highway Commission is an arm of the state, it is not required to file an appeal bond in any cause pursuant to the provisions of MCA § 11-51-101 (1972), which provides as follows:

The state, and any county, city, town or village thereof, and the officials representing the state, county, city, town, or village, in any suit or action, and any state, county, city, town, or village officer who is a party to any suit or action in his official character, in which suit or action the state, county, city, town, or village is beneficially interested, and the several incorporated charitable or educational institutions established and maintained by the state, and all corporate instrumentalities wholly owned by the United States government, shall be entitled to appeal from a judgment, decree, decision or order of any court or judge, from which an appeal may be taken, without giving an appeal bond; and in such case, if an appeal bond would operate as a superse-deas in favor of a private person, the appeal, without bond, shall have the same effect in the cases herein provided for; and this provision shall apply to all the courts of the state. (Emphasis added).

It is first noted that the above quoted general section which has been a part of the code for many years, specifically refers to appeal from “any court or judge.”

The next observation is that the arbitration board statute is a special statute and not a general statute as set oút in MCA § 11-5-101. See Lincoln County v. Entrican, 230 So.2d 801, (Miss.1970). The arbitration board appeal statute [MCA § 65-2-15] gives “either party” a right to appeal to the circuit court within fifteen days from the date of filing the arbitration board’s order. An essential part of the appeal is the required supersedeas bond. This bond is to be given by “either party” who appeals, as stated above. Under the terms of the arbitration board statute there can be only one party in opposition to a claimant and that is the Highway Commission. Therefore, the special arbitration board statute requiring an appeal bond clearly applies to the Highway Commission as the term “either party” applies to the Highway Commission, as it is always the only party on one side of the arbitration procedure. The legislature, if it intended otherwise, easily could have said “If the claimant appeals, it is required to file a bond.”

As stated, we hold that the required su-persedeas bond is jurisdictional, and the appeal is not perfected until the bond is approved by the circuit judge and filed. See Hutchinson v. Ferrell, 160 So.2d 903, 248 Miss. 700 (1964); Shirley v. Stevens, 114 So.2d 661, 237 Miss. 254 (1959).

We, therefore, hold that under MCA § 65-2-15 the appeal was not perfected within fifteen days due to the fact that a supersedeas bond was not approved and filed with the circuit court. The Circuit Court of the First Judicial District of Hinds County, therefore, had no jurisdiction to dispose of the appeal. We have no choice but to reverse the cause and reinstate the order of the arbitration board in the sum of $16,675.37.

REVERSED AND RENDERED.

PATTERSON, C.J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE and HAWKINS, JJ., concur.

DAN M. LEE and PRATHER, JJ., take no part.


author: SUGG, Presiding Justice,

text:
    Nathaniel CROSSLEY v. STATE of Mississippi.
    No. 53405.
    Supreme Court of Mississippi.
    Oct. 27, 1982.

      Thomas A. Coleman, Ackerman, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P.J., and HAWKINS and PRATHER, JJ.
   SUGG, Presiding Justice,

for the Court:

The appellant, Crossley, was tried in the Circuit Court of Montgomery County on a charge of capital murder. The circuit judge dismissed the case relating to the underlying felony due to the insufficiency of the evidence to establish that a robbery occurred. The case was submitted to the jury on the alternative instructions of murder and as an accessory before the fact. The jury returned a verdict of guilty of murder and the defendant appeals.

STATEMENT OF THE FACTS

Crossley and his traveling companion, Arthur Lee Gentry, were from Orange, Texas and had been to Chicago to visit Crossley’s relatives. They were returning to Texas and stopped in Winona, Mississippi at a gas station. The car they drove was leased in Crossley’s name, a new orange over white Thunderbird, 1980; Crossley was a passenger at the time. Two witnesses who were in route to Oxford, Mississippi from Winona saw Crossley and the car at the station in question between 10:45 and 11:00 p.m. on Sunday, April 20, 1980. They stated that he appeared sleepy and inquired about where he was. Jerry Grice was the station attendant. Each of the two witnesses had known Grice casually and testified that he was present and alive when they left the station; they saw no one else other than Grice and Crossley.

A third witness who made a turn through the station between 10:45 and 11:00 p.m. testified that she saw two black males standing inside the station facing out the glass door toward the highway. She could not identify Crossley as either of the men she saw that night. It could not be determined whether she had entered the driveway of the station before or after a fourth witness heard a shot fired and watched a black male run from the station. The fourth witness was across the street standing behind a van, therefore, his view of the station was blocked; however, he did see a light colored, late model car leave the station in the same direction as the man had run just moments before.

A phone call was received by the local police dispatcher from Jerry Grice who reported a robbery and a shooting. The first policeman to arrive found Grice shot and bleeding. Grice could not speak clearly and could not breathe regularly, but he told the policeman that a white and orange car and two black males had been there. A highway patrolman had arrived at this time and proceeded to dispatch the information gathered at the scene. Highway patrolmen between Canton and Jackson, Mississippi stopped and arrested Crossley and Gentry. Consent was given by Crossley for search of the car. A .32 caliber pistol was found behind the console of the car where some felt appeared to be sticking out. The accounts differ here but a highway patrolman testified that Crossley at first denied any knowledge of the weapon. One box of .32 caliber bullets was found in the trunk of the car. Only one shot had been fired from the pistol. Crossley and Gentry were handcuffed, and one of the highway patrolmen wrapped their hands with plastic bags.

Crossley waived counsel at the site of his arrest and later at the Madison County jail. He made a statement in which he denied having shot anyone. He claimed he was asleep in the car when it arrived in Winona and that he had only stepped out of the car long enough to stretch when he heard a shot and began to run. He stated that his companion, Gentry, picked him up shortly thereafter without discussing any details about what had occurred at first, but later saying that he and the attendant, “had got into it,” when the attendant had reached for a rifle. A .22 caliber rifle was at the station between the cash register counter and the wall. The record did not establish who owned the rifle, but the jury was left to surmise that it belonged to Jerry Grice. Grice’s empty wallet and some personal belongings were on the counter next to the cash register. Swabbings were made of Crossley’s hands as well as Gentry’s. Standard kits were used and the evidence was preserved for future reference with plastic bags and identification tags which established the chain of custody. The swabbings were sent to the F.B.I. for neutron activation analysis. When Grice died at 12:15 a.m. on April 21, 1980, one bullet was removed and preserved for evidence. A ballistics test was carried out on the .32 caliber pistol.

At trial it was shown that Crossley and Gentry were in the vicinity at the time in question, that Crossley’s pistol had fired the fatal shot, that the car which Crossley had leased matched the description given by witnesses who had seen it, and that amounts of barium and antimony were found on Crossley’s hands in sufficient or greater amounts to indicate that he had either fired a pistol, or had been standing very near when one had been fired, or had handled the pistol after it was fired.

Crossley admitted that he owned the pistol for protection, that Gentry knew where the pistol was in the car, and that he had handed Crossley the pistol after the shooting at Crossley’s insistence. It was agreed that merely handling a recently fired weapon would leave deposits of barium and antimony if the ammunition fired contained it, but it was never explained why Crossley had twice the amount of barium and antimony on his hands than Gentry.

ASSIGNMENTS OF ERROR

I

The Court erred in failing lawfully to arraign Appellant on the charge of capital murder before putting him to trial.

The complaint here is that Crossley was not arraigned during term time. The October term of court in Montgomery County begins on the second Monday of October. Section 9-7 — 19 Mississippi Code Annotated (1972). Crossley’s arraignment was held on October 3, 1980 after an indictment by the grand jury had been returned, and after he had been served with a copy of the indictment. On the advice of counsel, Crossley did not reply to any of the charges in the indictment. Crossley argues that unless he, personally, entered a plea at arraignment, the case will have to be reversed and retried. However, a defendant who stands mute in response to charges read to him by the court will have a plea of “not guilty” entered for him by the court. Section 99-15-23 Mississippi Code Annotated (1972).

Crossley also attempts to rely upon this Court’s decision in Alexander v. State, 226 So.2d 905 (Miss.1969) where a defendant stood mute and his attorney entered a plea of guilty on his behalf. This Court reversed the conviction on the ground that the plea of guilty was not intelligently and understandingly entered. The defendant was illiterate and the state made no showing that he understood what he was doing.

Crossley stood mute on advice of counsel due to the possibility that the arraignment might be improper and any pleas entered might constitute a waiver. In the companion case, Gentry v. State, 416 So.2d 650 (Miss.1982) Gentry assigned as error his arraignment in vacation over his objection. We disposed of Gentry’s contention in the following language:

Appellant first assigns as error his arraignment during vacation over his objection. He contends his conviction and sentence should be set aside so that he might be properly arraigned during a court term and retried.
Assuming, arguendo, arraignment was improperly held during vacation, the appellant has not demonstrated wherein he was prejudiced in any manner by being arraigned in vacation on a day designated by the court for arraignments and motions. (416 So.2d at 651)

Our decision in Gentry is in accord with the language of the United States Supreme Court in Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914). In that case, Garland was not arraigned, but his conviction was affirmed, the Court holding that Garland had waived his arraignment. The Court stated:

Due process of law, this court has held, does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution. Rogers v. Peck, 199 U.S. 425,435, 50 L.Ed. 256, 260, 26 Sup.Ct.Rep. 87, and previous cases in this court there cited. Tried by this test it cannot for a moment be maintained that the want of formal arraignment deprived the accused of any substantial right, or in any wise changed the course of trial to his disadvantage. All requirements of due process of law in criminal trials in a state, as laid down in the repeated decisions of this court, were fully met by the proceedings had against the accused in the trial court. The objection was merely a formal one, was not included in the general language in which the objection to the introduction of evidence was interposed before the trial, and was evidently reserved with a view to the use which is now made of it, in an attempt to gain a new trial for want of compliance with what in this case could have been no more than a mere formality. (232 U.S. at 645, 34 S.Ct. at 457, 58 L.Ed. at 775)
Technical objections of this character were undoubtedly given much more weight formerly than they are now. Such rulings originated in that period of English history when the accused was entitled to few rights in the presentation of his defense, when he could not be represented by counsel, nor heard upon his own oath, and when the punishment of offenses, even of a trivial character, was of a severe and often of a shocking nature. Under that system the courts were disposed to require that the technical forms and methods of procedure should be fully complied with. But with improved methods of procedure and greater privileges to the accused, any reason for such strict adherence to the mere formalities of trial would seem to have passed away. (232 U.S. at 646, 34 S.Ct. at 457, 48 L.Ed. at 775)

Although Crossley objected specifically to his arraignment in vacation, we are of the opinion that he was not prejudiced by the arraignment in vacation on a day set by the trial court for arraignments. Crossley does not contend that he was precluded from raising any defense at his trial or that he was otherwise prejudiced by the fact that the arraignment was held when it was. Crossley was served • with a copy of the indictment so he had actual notice of the crime with which he was charged and adequate opportunity to defend himself.

As the Court noted in Garland, technical objections of this character were given more weight formerly than they are now because the accused was entitled to few rights in presenting his defense. Under our modern system an accused may testify in his own behalf, is entitled to compulsory process to compel the attendance of witnesses, and counsel is provided if he is financially unable to afford counsel. Any reason for strict adherence to mere formalities have long since disappeared.

We find no merit in this assignment of error and hold that an accused may be arraigned in vacation so long as the arraignment is publicly conducted in the place designated for holding court.

II

The court erred in overruling defendant’s motion for change of venue.

Crossley and Gentry were both indicted for capital murder arising out of the death of Jerry Grice. Each defendant made a motion for a change of venue and by agreement both motions were heard together. We discussed in detail the evidence on the motions in Gentry v. State, 416 So.2d 650 (Miss.1982) and held that Gentry was not entitled to a change of venue. No useful purpose would be served by repeating what we said in Gentry and adhere to our holding there.

III

Crossley’s remaining seven assignments of error are combined in the third proposition of his brief and relate to the nature and adequacy of the evidence presented against him.

Crossley first maintains that the “Weathersby Rule” applies since there were no witnesses to the shooting. Crossley claims he did not see the actual shooting and did not enter the building where the shooting took place. In Griffin v. State, 293 So.2d 810 (Miss.1974), the defendant allegedly never woke up during an attack by his brother upon the victim. This was testified to by the defendant’s brother, and was uncontradicted by- the state.

Crossley claims he never entered the station and stated he merely got out of the car, stretched, heard a shot and instinctively ran. The state put on a witness who drove through the driveway of the station on the night in question at approximately 10:45 p.m. and saw two black males inside the station. The witness did not see any other person at the scene and there is no evidence in the record to show that any other black males were on the premises at that time or near the time in question. The witness’ testimony that there were two black males inside the building contradicts Crossley’s claim that he never went inside the station that night. The evidence offered by the state contradicts the testimony of Crossley so the Weathersby Rule does not apply.

Crossley also contends that the evidence was not sufficient to support his conviction either as the person who fired the shots that killed Grice or as an accessory before the fact. The state’s primary theory at the trial was that Crossley actually fired the fatal shot that killed Grice. The state prosecuted alternatively on the theory that Crossley was an accessory before the fact. It was permissible for the state to prosecute in the alternative, because whether Crossley was a trigger man or whether he aided and abetted the trigger man he could be indicted and tried as the principal. Scales v. State, 289 So.2d 905 (Miss.1974).

The evidence established that Cross-ley and Gentry had been traveling together through several states in a car rented by Crossley, that they were the only persons present at the scene when Grice was killed, that a pistol belonging to Crossley was the weapon used to shoot Jerry Grice, that Crossley and Gentry fled after the shot was fired, that Crossley was arrested while riding as a passenger in that car, that the pistol was hidden in the console of that car, that Crossley denied any knowledge of the weapon when he was arrested, and that Crossley had sufficient amounts of barium and antimony on his hands either to have recently fired a pistol or to have handled a recently fired pistol. The analysis of swabs taken from Crossley’s and Gentry’s hands by the process of neutron activation carried out by the F.B.I. also established that the amount of residue on Crossley was twice the amount found on Gentry’s hands.

Crossley also argues that malice was not proved so his requested peremptory instruction should have been granted.

In Smith v. State, 205 Miss. 283, 38 So.2d 725 (1949) held that, if the proof shows an intentional use of a deadly weapon and death results and no other facts are proven, then the law presumes malice from the use of a deadly weapon. A pistol, even if not loaded or capable of being fired, is a deadly weapon. Corley v. State, 264 So.2d 384 (Miss.1972). Both Smith v. State, supra, and Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961) base their holding of malice being implied when a deadly weapon is used upon section 2215 of the Mississippi Code Annotated (1942). This section is now embodied without alteration in section 97-3-19(1) Mississippi Code Annotated (Supp. 1981). Section 97-3-19(2) was added in order to define capital murder. It went into effect on April 23, 1974 and in no way altered the interpretation of the previous homicide statute other than to specify those acts of homicide for which death could be the penalty. Therefore, there is ample evidence from which a jury could have found Crossley guilty of murder since the use of a deadly weapon supplies the element of malice.

The other evidence was circumstantial but sufficient to support the jury verdict.

From a careful study of the entire record, we hold that the evidence was sufficient to support the verdict of the jury.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . See 50 A.L.R. 3118 for annotation on Neutron Activation Analysis, and 15 Am.Jur. 115 Proof of Facts.

      . Section 97-1-3—Accessories—before the fact.
      Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not,.