author: PATTERSON, Chief Justice, SUGG, Justice, WALKER, Justice, PATTERSON, Chief Justice, SMITH, Presiding Justice,

text:
    Alvin CULBERSON v. STATE of Mississippi.
    No. 50802.
    Supreme Court of Mississippi.
    Nov. 28, 1979.
    Rehearing Denied Feb. 20, 1980.

      Albert Sidney Johnston, Jr., Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.
   PATTERSON, Chief Justice,

for the Court on the Guilt-Determining Phase; SUGG, Justice, for the Majority on the Sentence-Determining Phase.

Alvin Culberson was convicted of capital murder and sentenced to death by the Circuit Court of the First Judicial District of Harrison County. A similar verdict and sentence on the same charge were reversed and remanded in Culberson v. State, 348 So.2d 1025 (Miss.1977). We there directed a new trial with bifurcation pursuant to our decision in Jackson v. State, 337 So.2d 1242 (Miss.1976). We presently affirm the guilty verdict.

The evidence adduced at Culberson’s second trial sufficed to convince the jury of appellant’s guilt. The state established through Alvarese Pittman, an accomplice, that he was with Culberson on January 31, 1975, when they met in a restaurant and schemed a robbery. In furtherance of their plan, Pittman and Culberson left the restaurant seeking a victim, and as they walked along a highway, Culberson picked up a stick, a table leg, believed to be needed for their purpose. Pittman’s testimony concerning their intentions and the stick follows in part:

Q. What did you all talk about?
A. Well, we was sitting there and Alvin came, and we just started about robbing somebody. He was broke and I was broke. We wasn’t looking for nobody in particular to rob, we was just walking up towards Old Highway 49, and on our way up toward Old Highway 49 we saw a Frito truck in front of the Beverly Lounge. We was walking that way, and alongside the ditch was a table leg, a stick and Alvin picked the stick up and we went on up to the Club.
He sfc * * * *
Q. What were you going to do?
A. Going to knock the man out with the stick.
Q. And do what?
A. Rob him. After we knocked him out we was going to get his money.
Q. Whose idea was it to commit this robbery?
A. Alvin’s. It was both, I agreed with him.

Just before obtaining the stick or immediately afterward, Pittman and Culberson observed a delivery truck parked in front of the “Beverly Lounge” business establishment. They also saw someone, their prospective victim, leave the lounge and move toward the truck when the following occurred, according to Pittman:

Q. Now, as you approached the man, the two of you, tell the Court and jury what took place.
A. Alvin spoke and I spoke, and he spoke back.
Q. Where was the man at this time?
A. He was about ten or fifteen feet, between ten and fifteen feet from the door, going to the truck.
Q. From the door of the Beverly Lounge?
A. Yes, going back to the truck. I guess he was going to get his order.
Q. And then what happened?
A. We spoke and by the time we got past him—
Q. Did the man speak back?
A. Yes, sir.
Q. Was it any kind of arrogant speaking?
A. It was just a normal hello, how’re you doing. And Alvin turned around and hit the man in the back of the neck with the stick, which he intended to knock him out. He knocked him down but he didn’t knock him out, and the man fell on the ground and begged him, throwed up his hands and hollered for help.
Q. What did the man say when he fell to the ground?
A. He hollered for help.
Q. What did the man say? Just tell the jury what he said.
A. He said “help, help me”, and by that time Culberson pulled out the gun and shot him, and I said “what you done done, man? Let’s go”, and we took off running and run toward the Tims Motel and I slipped down going in the door, and I got back up and ran, and we got away.

Pittman also testified he was not aware that Culberson was armed with a pistol and would not have accompanied him had he known so.

Only Pittman and Culberson witnessed the shooting although others heard the shot and saw two men leaving the scene. While these witnesses could describe the general appearance and clothing of the fleeing men, none could identify Culberson as one of the men they observed on the occasion. The remainder of the state’s evidence concerned the death of Grady Evans by a bullet wound, pictures of the scene and other requisites to establish the corpus delicti. Cul-berson did not testify.

I.

The appellant contends his conviction is contrary to the weight of the evidence. This argument has little merit, in our opinion. It is well established in our jurisprudence that an accused may be convicted on the uncorroborated testimony of an accomplice. Rich v. State, 322 So.2d 468 (Miss.1975); Moore v. State, 291 So.2d 187 (Miss.1974); Young v. State, 212 Miss. 460, 54 So.2d 671 (1951); Larry v. State, 211 Miss. 563, 52 So.2d 292 (1951); Boutwell v. State, 165 Miss. 16, 144 So. 479 (1932); Matthews v. State, 148 Miss. 696, 114 So. 816 (1927).

While it is true the testimony of an accomplice must be considered with caution, Feranda v. State, 267 So.2d 305 (Miss.1972), the record here demonstrates that Pittman’s testimony is neither unreasonable nor uncorroborated. The photographs, the physical facts, corroborate Pittman in every important particular. Although the testimony of an accomplice, if unreasonable, improbable, self-contradictory or if impeached by an unimpeaehed witness, is not sufficient to carry the burden of proof for conviction, Feranda, supra, we nevertheless think reasonable explanation of contradictions may be offered, leaving the evidence sufficient for the jury’s resolution if it accepts the explanation.

In cross-examining Pittman, a prior contradictory statement consisting of an affidavit executed by Pittman while in prison was introduced into evidence. He swore in it that he did not see Culberson shoot anyone. The contradiction was explained by him as being the result of fear because he thought there was a “contract” on his life while he was incarcerated. He disclaimed the truth of the affidavit from the witness stand and reaffirmed that Culberson was the person who killed Evans. The jurors resolved the truthfulness of the different statements by accepting the accomplice’s last version after being properly instructed that an accomplice’s testimony must be regarded with caution and suspicion. We are of the opinion the jury had the right to accept as true Pittman’s current testimony. As stated, there was sufficient evidence to sustain the jury’s verdict.

II.

Culberson next contends the testimony at trial varied from the indictment, requiring reversal. The indictment follows in part:

That ALVERREECE PITTMAN AND ALVIN CULBERSON . . . on or about the 31st day of January in the year of our Lord, 1975, . . . did unlawfully, wilfully & feloniously, with malice aforethought, kill and murder one Grady V. Evans, a human being, while engaged in the commission of robbery upon him, in violation of Section 97-3-19, Sub-Section 2(e), Mississippi Code of 1972, as amended, .

The statute on capital murder referred to in the indictment states in part:

§ 97-3-19.

* * * * * *
(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
* * * * * *
(e) Wben done with or without any design to effect, by any person engaged in the commission of the crime of . robbery, or in any attempt to commit such felonies, .

Culberson’s initial argument is that the indictment charged robbery whereas the testimony only relates to an attempted robbery. Subsection 2(e) appears in the indictment as an exact reference to the constituent violation with which the appellant is charged. The statutory language, “engaged in the commission of the crime of robbery,” which coincides with that of the indictment, “while engaged in the commission of robbery,” is sufficiently comprehensive, in our opinion, to include the attempt. The legislative intention in elevating a homicide from murder to capital murder was upon the basis that it be committed during the commission of one of the felonies enumerated in the statute, rape, burglary, kidnapping, arson or robbery. It is enough if the constituent offense is related to the greater charge in the indictment by language clearly informing the indictee of the underlying felony in which he was engaged, or its attempt, at the time of the homicide. In our opinion, the statutory language, “engaged in the commission of,” includes the attempt to commit the constituent felony, the completed constituent felony, as well as'the immediate post-felony acts of the accused so connected to the cardinal charge as to become a part of it, the res gestae. Pickle v. State, 345 So.2d 623 (Miss.1977); Lipscomb v. State, 223 Md. 599, 165 A.2d 918 (1960); MacAvoy v. State, 144 Neb. 827, 15 N.W.2d 45 (1944). The language of the indictment was sufficient to apprise Culberson of the constituent charge against him, thereby enabling him to prepare a defense to it, if any he had.

The appellant next suggests the indictment is defective because it does not allege an intent and overt act as required for attempted crimes, citing Dill v. State, 149 Miss. 167, 115 So. 203 (1928), and Miller v. State, 130 Miss. 730, 95 So. 83 (1922). We cannot agree, because the indictment clearly states that Culberson did willfully kill a human being, etc. The words, “did willfully kill,” mean the completed act of homicide which also necessarily means there was an overt act sufficient to accomplish that result. We reject this contention by repeating the indictment is clear, unambiguous and was sufficient to inform the appellant of the constituent offense with which he was charged.

III.

On October 17, 1977, the day before the testimony in the trial got under way, defendant moved for a continuance because two of his witnesses were not present though subpoenas had been issued for them. He urged their testimony was necessary to a proper defense. No pretrial ruling on the motion appears, but at the conclusion of the first day’s testimony, defendant again moved for a continuance since the subpoenas for the witnesses had been returned “not found.” The court overruled the motion but directed the sheriff to continue his efforts to find the witnesses. The motions were twice renewed and overruled during the trial.

The motions arose once more when the defendant moved for a new trial after verdict and sentence. At that time defense counsel stated the absent witnesses would have shown appellant to be innocent of the charge against him. Five prospective witnesses were named, only one of whom appeared at the hearing to testify in appellant’s behalf that day. The hearing continued the next day when three of the missing witnesses appeared.

The first, Cora Thompson, testified in part as follows:

Q. I ask you, Cora, if you know Al-verese Pittman?
A. Yes.
Q. Did you see him on or about January 31, 1975?
A. Yes.
* * * * * *
Q. What did he ask you, if you remember, about did you notice anything about a killing?
A. Well, he didn’t ask me. He showed me that Club, the Blue Light Club, and he said “you heard about the man that got killed in North Gulfport? And I said “yes”, and he said “Do you know who killed him”? And I said “No”, and he pointed to himself.
Q. I ask you, Cora, if you know whether or not Alverese had a pistol?
A. Yes.
Q. Did he show it to you?
A. Yes, I have seen the pistol he had before.
Q. Had you seen the pistol before the shooting?
A. Yes, I saw it before the killing.
Q. And afterwards too?
A. No, I didn’t see it afterwards.
Q. Do you remember what kind of pistol it was?
A. Yes.
Q. How was it identified in your mind?
A. It was a .22 with black tape around the handle of it.
Q. I show you a pistol that has been offered in evidence in this case, and ask you if you have seen that before?
A. Yes, that’s the gun.
Q. That’s the gun that Alverese showed you?
A. Yes.
Q. And did he have that gun on the 31st day of January, 1975?
A. I don’t know.

The next witness, Jackie Skinner, related testimony concerning the whereabouts of Leon Mills, the remaining witness subpoenaed by the defense who had not yet appeared to testify.

The third, D. Robinson, stated that in March 1975, he approached a man named “Slick” at appellant’s request and received from him a package containing the gun that had been introduced into evidence through Cora Thompson. Robinson testified he delivered the package to a Mrs. Brumfield, appellant’s mother, as he had been directed to do. Robinson was unsure who owned the gun and could not remember seeing Pittman with it. The identity of “Slick” remains a mystery.

By Mississippi Code Annotated section 99-15-29 (1972) the granting or denial of a continuance is within the discretion of the trial judge. Appellant failed to satisfy the requirements of the statute in that his motion was not supported by affidavit and did not state with particularity the material testimony expectéd from the absent witnesses.

All but one of these witnesses eventually testified on the motion for a new trial. Their testimony, summarized above, hardly adds a new dimension to appellant’s case, in our opinion, although it must be acknowledged that Cora Thompson’.s testimony about Pittman’s demonstration could have possibly affected his credibility. Otherwise, her testimony, when considered with that of Skinner and Robinson, only raises an ambiguity concerning the ownership of the gun. It does not address the possession of the gun when the fatal shot was fired. Under these circumstances and the commonplace knowledge of the continuance statute, we conclude there was no error in denying defendant’s motion for a continuance. Dyer v. State, 300 So.2d 788 (Miss.1974); Saucier v. State, 259 So.2d 484 (Miss.1972); and Ford v. State, 227 So.2d 454 (Miss.1969).

ÍV.

Appellant next argues that he was denied the right to testify in his own behalf. The first time the court was informed the appellant desired to testify was during the hearing on the motion for a new trial. Cul-berson testified he had not been a witness at his first trial because his counsel had informed him it was not necessary. He stated that he did not take the stand during his second trial because his counsel had told him “[w]ell, just hold on,” and he never got a chance to testify.

The trial court did not refuse any request by appellant to testify simply because no such request was ever made. For this reason, Gray v. State, 351 So.2d 1342 (Miss.1977), is readily distinguishable. There, at the close of the guilt-determining phase, the court explicitly denied the accused the right to make a statement to the jury as our constitution permits. Here, appellant’s counsel intentionally kept Culberson off the stand, not an unwise trial tactic it would seem, in view of appellant’s several prior convictions which could have been exposed had he become a witness.

Culberson’s family retained an attorney of considerable trial experience and good judgment to represent him. We have previously held that one who retains his own attorney waives his right to complain of his competency. Rogers v. State, 307 So.2d 551 (Miss.1975); Miller v. State, 231 So.2d 178 (Miss.1970). We think this particularly true when, as here, the record discloses competent representation on behalf of the defendant.

V.

It is next argued that four instructions proffered by the state were improperly granted and three proffered by Culberson were improperly refused.

Appellant concedes his trial counsel did not object to the state’s instructions as required by Mississippi Supreme Court Rule 42. Appellate counsel argues, however, that we should deem this an extreme case and waive strict application of Rule 42 as we did in Toney v. State, 298 So.2d 716 (Miss.1974). We do so with reluctance and only because this is a capital case.

In contrast with Marble v. State, 195 Miss. 386, 15 So.2d 693 (1943), the instructions for the state did not assume as true any material fact, but were based upon the evidence and subjunctively stated in order to leave all factual conflicts to the jury for resolution. Compare Dickins v. State, 208 Miss. 69, 94, 43 So.2d 366 (1949). The remainder of the criticisms of the state’s instructions only reiterate that the weight of the evidence does not support the verdict. We have rejected this argument heretofore and do not repeat it.

We are further of the opinion Instruction D-2 was properly refused. Although it might have been proper in a circumstantial evidence case, Barrett v. State, 253 So.2d 806 (Miss.1971), the record here does not reveal circumstantial evidence but rather the direct testimony of an accomplice concerning the occurrence.

Instruction D-3 was also properly refused. It has been condemned by this Court for various reasons on several occasions. Dubose v. State, 320 So.2d 773 (Miss.1975); Wells v. State, 288 So.2d 860 (Miss.1974); and Carr v. State, 192 Miss. 152, 4 So.2d 887 (1942).

Lastly, Instruction D-10 was properly refused because it is peremptory for the defendant and raises once more the issue of the sufficiency of the evidence which we have heretofore addressed.

VI.

The second trial was confined in the first phase to Culberson’s guilt or innocence of capital murder. Before voir dire, the trial judge made the following statement to the prospective jurors:

In these cases now the jury first determines whether or not the defendant is guilty of the charge. Then if you do decide he is guilty, there will be another hearing on the question of the sentencing, but for the time being you are only concerned with the question of whether or not the defendant is guilty of the charge.

At the conclusion of the first phase, the jurors were instructed their verdict might take the following form: “We, the jury, find the defendant guilty of capital murder.” After deliberating for two hours and forty-three minutes, they returned a verdict which read: “We, the jury, find the accused guilty as charged.”

Williamson v. State, 167 Miss. 783, 149 So. 795 (1933), is cited in support of the argument that a discrepancy between the form of the verdict suggested by the court and the form of the verdict returned by the jury precludes the death sentence. This case has no application to a bifurcated trial and is not persuasive. Court records reveal identical verdict forms in the following capital cases: Caldwell v. State, 347 So.2d 1389 (Miss.1977); Henderson v. State, 342 So.2d 744 (Miss.1977); and Jackson v. State, 337 So.2d 1242 (Miss.1976). Furthermore, in Ellard v. State, 248 Miss. 313, 158 So.2d 690 (1963), we stated and adopted:

“ ‘The general rule as found in the texts is, that ordinarily the verdict is sufficient in form if it expresses the intent of the jury so that the court can understand it, 22 Eng.Pl. & Pr., p. 891; or that the test of the validity of a verdict is whether or not it is an intelligible answer to the issues submitted to the jury . . . (248 Miss, at 318-19, 158 So.2d at 692)

Presently, we do not understand the verdict to deviate from the jury’s clear intention. Moreover, no effort was made by the defendant to clarify the alleged discrepancy; the judge polled the jury, and each juror acknowledged the verdict reflected his or her vote, and none expressed any doubt about the verdict prior to or during the punishment phase of the trial. It is convincingly clear to us that the jurors understood “guilty as charged” to mean “guilty of capital murder.” The difference argued gives rise only to a distinction without meaning, in our opinion.

VII.

The next issues concern the constitutionality of the felony murder statute and the propriety of the death sentence.

(a)

Appellant contends the felony murder statute, Mississippi Code Annotated section 97-3-19(2)(e) cannot pass constitutional scrutiny because the language “with or without any design to effect death” permits imposition of death upon one who harbors no specific intent to kill. We rejected a similar argument in Gray, supra, but express further views.

All states have endorsed the common-law concept of felony murder in some form. In it the felon is considered “at risk” while committing the felony so that if a homicide results, it is considered murder, or, as in our state, capital murder if associated with the felonies, designated by the legislature. The legislature’s intent was to protect the citizenry from the evil of the lesser felony by imposing a greater penalty upon a homicide occurring during its commission. Some authorities view the felony murder statutes as imputing or irrebuttably presuming a specific intent to kill from the association of the homicide with the underlying felony. These same authorities acknowledge “[l]ong standing judicial approval of the presumption provides strong indication that the presumption comports with due process.” Comment, Constitutional Limitations Upon the Use of Statutory Criminal Presumptions in the Felony Murder Rule, 46 Miss. L.J. 1021, 1035 (1975); see also Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).

The appellant argues, however, that only 0.5% of robberies result in homicide. Therefore, it cannot be said the robber in every case intended to kill. This may be true, but we think it overlooks the great danger the aggressor willfully imposes upon his victim. The constituent crime with its hazardous potential is that which the legislature intended to deter by permitting capital punishment if death results from the felonious undertaking.

Presently, we can say without doubt the appellant schemed and participated in the unlawful • undertaking which resulted in death. The subjunctive nature of the intention to kill makes it no less deliberate and no less deserving of capital punishment than if it had been expressed, in our opinion. The felon who causes death in furthering his crime manifests a callous disregard for human life, because he subordinates the life of the innocent to- his desire for gain, thereby inviting the outrage of a society understandably bent upon protecting itself from physical violence.

As far as we can determine, the United States Supreme Court has not held a statute unconstitutional simply because it permits the death penalty to be imposed without affirmative proof of a specific intent to kill. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Court considered a case in which a young woman had been sentenced to death for her role in an armed robbery in which a pawnshop, owner was killed by her accomplice. She was not in the pawnshop when the shooting occurred. Nevertheless, the Court did not hold the death penalty unconstitutional per se, but reversed only because the Ohio capital punishment statute improperly limited the mitigating factors to be considered in the sentencing process to certain narrowly defined factors, not including the minor role of the defendant among partners in crime. Only Mr. Justices Brennan and White considered the death penalty per se unconstitutional in felony murder cases in which affirmative evidence of a specific intent to kill has not been made.

Our statute places no limit upon the mitigating factors that may be considered in the capital sentencing process, and since it includes the minor role of the defendant as a mitigating factor, we conclude it suffers no constitutional infirmity under Lockett. See Miss.Code Ann. § 97-3-21 (Supp.1977), as construed in Jackson v. State, 337 So.2d 1242, 1254 (Miss.1976); and Miss.Code Ann. § 99-19-101 (Supp.1977).

(b)

Following the preferred practice, the trial court retained the jury used in the guilt phase for the second phase directed to punishment. Defendant complains the court permitted improper voir dire of the venire, arguing that a “death prone” jury emerged after challenges by the state eliminated those opposed to capital punishment. We do not have the full transcript of the voir dire conducted by the parties before us and therefore cannot address this point in detail. However, we do note that a challenge for cause may be properly sustained when a prospective juror indicates that he will automatically vote against the imposition of capital punishment without regard to any evidence that might be developed. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Spinkellink v. Wainwright, 578 F.2d 582, 592-93 (5th Cir. 1978). Conversely, he may be accepted as a juror if in spite of his nonbelief in capital punishment he can put such belief aside and follow the law and evidence in accord with his oath to render a true verdict.

After deliberation, the Court is unanimous in its opinion that the jury’s verdict of guilty and the trial procedures leading to it should be affirmed.

THE SENTENCING PHASE

SUGG, Justice,

for the Majority:

All justices concur in what has been written by Justice Patterson for the Court but there is some disagreement among the justices on the question of whether the death penalty should be affirmed. A majority of the justices are of the opinion the death penalty should be affirmed. The views of the minority are expressed in a dissent by Justice Patterson.

The record covering the sentencing phase spans some forty-four pages. The state introduced aggravating circumstances consisting of prior criminal convictions of armed robbery and assault and battery with intent to kill. The state objected to the exclusion of evidence of a kidnapping conviction and cross-assigns this exclusion as error on appeal. In instructing the jury the court limited the aggravating circumstances which might be considered in sentencing to (1) whether the offense occurred in the commission of an attempted robbery, (2) whether the offense was especially heinous, atrocious, or cruel, and (3) whether the defendant had previously been convicted of felonies involving the use or threat of violence to the person. The court, in compliance with Lockett, supra, 438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d at 990, in no way constrained the jury with respect to the number or quality of mitigating circumstances which might be considered in appellant’s favor.

The sentencing phase progressed without procedural error, in our opinion, although we do think the kidnapping conviction should have been admitted as an aggravating circumstance. It was not admitted out of precaution by the court, because a colloquy had arisen between the attorneys as to whether kidnapping is a crime of violence. Presently, its omission is immaterial, because the death penalty was imposed.

By Mississippi Code Annotated section 99-19-105 (Supp.1978) the legislature mandated this Court to review the imposition of the death penalty. It follows in pertinent part:

(1) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Mississippi Supreme Court .
(2) The Mississippi Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.
(3) With regard to the sentence, the court shall determine:
(a) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
(b) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 99-19-101; and
(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
s(: * sfc * :{c *
(5) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
(a) Affirm the sentence of death; or
(b) Set the sentence aside and remand the case for modification of the sentence to imprisonment for life.
(6) . . . The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.

In response to Subsection (3)(a) above, the Court is of the opinion the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor.

In response to Subsection (3)(b) above, the Court is of the opinion the evidence does support the jury’s finding of the statutory aggravating circumstances as enumerated in Section 99-19-101.

In response to Subsection (3)(c) above, the Court is of the opinion the sentence of death is not excessive and disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. This response requires amplification.

Heretofore, this Court’s review of punishment has been largely confined to the ascertainment of whether the sentence was within the limits of the statute. If no prejudicial error was found in the trial proceedings, the sentence, if within such limits, would be upheld. The mandate of Section 99-19-105 is novel, because it places this Court in the stream of the punishment process by requiring that we determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. In complying with the reviewing role which we now occupy in this and other death imposed cases, we have reviewed the following capital cases in which we have rendered dispositive decisions affirming death sentences and setting dates for executions: Gray v. State, 375 So.2d 994 (Miss.1979); Jordan v. State, 365 So.2d 1198 (Miss.1979); Voyles v. State, 362 So.2d 1236 (Miss.1978); Irving v. State, 361 So.2d 1360 (Miss.1978); Washington v. State, 361 So.2d 61 (Miss.1978); and Bell v. State, 360 So.2d 1206 (Miss.1978).

Our research reveals that in none of these cases does a death sentence rest solely- upon the testimony of an admitted accomplice who has given state’s evidence and received a sentence of manslaughter when by his own admission he was an accomplice to capital murder. A somewhat similar case is Voyles, supra, in which a conviction and death sentence depended upon a young witness who was present when the crime occurred, but who denied any participation in the homicide committed by his uncle, thereby creating, we think, a distinction between that case and this.

The record here reveals that Pittman participated in the constituent felony from its inception until Evans was killed. He did not deny this participation, but acknowledged it in detail, only claiming he was not aware Culberson carried a firearm and would not have accompanied him had he known so. Pittman admitted his willing participation in the crime through the blow being struck with the table leg to render the victim unconscious. He qualified his role in the capital murder by denying he intended homicide or knew that such was imminent. It is clear, however, that this qualification does not relieve Pittman of his confessed guilt of the crime of capital murder. Price v. State, 362 So.2d 204 (Miss.1978).

This leaves the question of whether the words in Subsection (3)(c), “imposed in similar cases, considering both the crime and the defendant,” include for our review and comparison the exact and therefore similar crime of the accomplice and the sentence received by him for it. We construe the language to include not only the capital cases heretofore determined by this Court in which the death sentence has been imposed or rejected on the merits, but also cases involving multiple defendants when one participant is given the death penalty and an accomplice less than death. One of the questions arising in such cases is whether a sentence of less than death to an accomplice was a result of prosecutorial discretion. An affirmative answer raises a second question, was the discretion abused?

The proof in this case shows that Pittman and Culberson conspired to commit robbery and participated in the attempted robbery of decedent with Culberson firing the fatal shot. It was established by other witnesses that there were two assailants, but none of the witnesses could identify either Pittman or Culberson as the assailants. Pittman, one of the participants in the crime, turned state’s evidence, and his testimony was the sole evidence that Culberson fired the fatal shot.

This case involves prosecutorial discretion which was necessary. Without the testimony of Pittman, there was no evidence to place Culberson at the scene of the crime and to show that he fired the fatal shot. We recognize the great disparity between the sentences of Pittman and Culberson, but if the state is not permitted to exercise prosecutorial discretion in order to obtain the testimony of a participant in a capital murder by permitting the one furnishing the testimony to plead guilty to a lesser crime, crimes such as the one in this case would not be solved and all participants would go free. When two or more persons commit a crime and cannot be identified except by one of the participants, the state must be allowed some discretion in securing the testimony of one of the participants in order to solve the crime.

To hold otherwise would be tantamount to holding: (1) The testimony of an accomplice in a capital murder case is sufficient to sustain a conviction in the guilty phase of the trial, but is not sufficient to sustain the death penalty in the sentencing phase. (2) If an accomplice who testifies for the state in a death penalty ease is not given the death penalty, the trigger man may not be given the death penalty. Such result is not required by our statutes, the decisions of the United States Supreme Court, or our decisions.

We hold prosecutorial discretion was not abused because Pittman, who did not fire the fatal shot, was permitted to plead guilty to manslaughter, while Culber-son, the one who fired the fatal shot, was given the death penalty. We hold the death penalty was not applied capriciously in this case. It is a proper sentence for the senseless and unprovoked murder committed by Culberson, who, after first knocking the victim down with a table leg, then shot the victim while he was lying on the ground begging, “Help me, help me.”

AFFIRMED, AND EXECUTION SET FOR JANUARY 10, 1980.

All Justices concur in guilt-determining phase. In sentence-determining phase.

ROBERTSON, P. J., and WALKER, LEE, BOWLING and COFER, JJ., concur.

WALKER, J., ROBERTSON, P. J., SUGG and LEE, JJ., specially concur.

PATTERSON, C. J, SMITH, P. J., and BROOM, J., dissent.

WALKER, Justice,

specially concurring:

I concur with the majority on both the guilt and sentencing phase of Culberson’s trial as well as the verdict and sentence imposed. However, I feel constrained to comment on the necessity and propriety of prosecutorial discretion which resulted in the disparity between the sentences of Pittman and Culberson, who were both originally charged with capital murder. Culber-son received the penalty of death while Pittman was sentenced to fifteen years in the penitentiary.

Prosecutorial discretion is absolutely necessary and an essential element of our system of criminal jurisprudence. Without it, the courts of this Country would be hopelessly bogged down in a backlog of cases and the cost of court administration would be astronomical.

The United States Supreme Court has not yet, nor do I anticipate that it will ever hold that the practice of prosecutorial discretion is so inherently unfair as to render its practice unconstitutional. The practice and necessity of prosecutorial discretion has been alluded to by a number of the justices of the United States Supreme Court beginning with Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), wherein the newly enacted statutory provisions relative to death penalty cases were upheld. In that case Mr. Justice White, with whom Mr. Chief Justice Burger and Mr. Justice Rehnquist joined, made the following observation:

Petitioner also argues that decisions made by the prosecutor — either in negotiating a plea to some offense lesser than capital murder or in simply declining to charge capital murder — are standardless and will inexorably result in the wanton and freakish imposition of the penalty condemned by the judgment in Furman. I address this point separately because the cases in which no capital offense is charged escape the view of the Georgia Supreme Court and are not considered by it in determining whether a particular sentence is excessive or disproportionate.
Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a stan-dardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury’s decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor’s charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly “similar.” If the cases really were “similar” in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary.
Petitioner’s argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discrimina-tions will occur which will be difficult to explain. However, one of society’s most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner.

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1973), Mr. Justice Stevens, speaking for the Court, said:

The petitioner first asserts that arbitrariness still pervades the entire criminal system of Texas — from the prosecutor’s decision whether to charge a capital offense in the first place and then whether to engage in plea bargaining, through the jury’s consideration of lesser included offenses, to the Governor’s ultimate power to commute death sentences. This contention fundamentally misinterprets the Furman decision, and we reject it for the reasons set out in our opinion today in Gregg v. Georgia, [428 U.S. 153,] at 199, 96 S.Ct. 2909 [at 2937], 49 L.Ed.2d 859.

At the same term of court, in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), it was argued, inter alia, that prosecutorial discretion would result in arbitrary sentences and therefore be unconstitutional. Justice White, in a dissenting opinion, joined by Mr. Chief Justice Burger, Mr. Justice Blackmun, and Mr. Justice Rehnquist, observed:

Nor am I convinced that the Louisiana death penalty for first-degree murder is substantially more vulnerable because the prosecutor is vested with discretion as to the selection and filing of charges, by the practice of plea bargaining or by the power of executive clemency. Petitioner argues that these characteristics of the criminal justice system in Louisiana, combined with the discretion arguably left to the jury as discussed above, insure that the death penalty will be as seldom and arbitrarily applied as it was under the predecessor statutes. The Louisiana statutes, however, define the elements of first-degree murder, and I cannot.accept the assertion that state prosecutors will systematically fail to- file first-degree murder charges when the evidence warrants it or to seek convictions for first-degree murder on less than adequate evidence. Of course, someone must exercise discretion and judgment as to what charges are to be filed and against whom; but this essential process is nothing more than the rational enforcement of the State’s .criminal law and the sensible operation of the criminal justice system. The discretion with which Louisiana’s prosecutors are invested and which appears to be no more than normal, furnishes no basis for inferring that capital crimes will be prosecuted so arbitrarily and infrequently that the present death penalty statute is invalid under Furman v. Georgia.
I have much the same reaction to plea bargaining and executive clemency. A prosecutor may seek or accept pleas to lesser offenses where he is not confident of his first-degree murder case, but this is merely the proper exercise of the prosecutor’s discretion as I have already discussed. So too, as illustrated by this case and the North Carolina case, Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, some defendants who otherwise would have been tried for first-degree murder, convicted, and sentenced to death are permitted to plead to lesser offenses because they are willing to testify against their codefendants. This is a grisly trade, but it is not irrational; for it is aimed at insuring the successful conclusion of a first-degree murder case against one or more other defendants. Whatever else the practice may be, it is neither inexplicable, freakish, nor viola-tive of the Eighth Amendment. Nor has it been condemned by this Court under other provisions of the Constitution. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). See also Chaffin v. Stynchcombe, 412 U.S. 17, 30-31, 93 S.Ct. 1977, [1984,] 36 L.Ed.2d 714 (1973).

See also Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978).

In eases where a prosecuting attorney must resort to plea bargaining in order to obtain the cooperation of one or more accomplices in a brutal killing such as the one before us in order to convict other culprits to the crime, we must assume, unless there is evidence to the contrary, that he acted in good faith and in the best interest of the state. In those instances, we are unable to and should not attempt to compare the sentence of the cooperating accomplice or accomplices with other defendants who denied their guilt, placed their fate in the hands of a jury and received the death penalty. The rationale being: (1) the accomplice has confessed his guilt and placed himself on the mercy of the court; (2) he has cooperated with the state by giving important testimony resulting in his accomplice’s conviction and sentence, who might have otherwise gone free; and (3) we have no way of knowing what mitigating circumstances were considered by the district attorney in selecting a particular eodefendant for plea bargaining. Since it was not necessary to put the plea-bargaining accomplice to trial, we have no reliable record of witnesses testifying under oath with reference to such accomplice’s criminal disposition or mitigating factors in his favor to consider as we are required to do. It cannot be seriously argued that every accomplice should receive the death penalty in cases where it is imposed on one of the participants to a crime. There are too many factors which must be considered when dealing with individuals for such a rule to be practical, such as the age, the degree of participation in the crime of each of the defendants, prior criminal record or lack of it, mentality, as well as other factors too numerous to mention.

In my view, it is the primary duty of this Court, when reviewing death penalty cases, to see that it is only imposed in the most severe cases involving the brutal, heinous and unnecessary killing of a human being. We have done this in all of the death penalty cases coming to this Court since Jackson v. State, 337 So.2d 1242 (Miss.1976); Bell v. State, 360 So.2d 1206 (Miss.1976); Washington v. State, 361 So.2d 61 (Miss.1978); Irving v. State, 361 So.2d 1360 (Miss.1978); Voyles v. State, 362 So.2d 1236 (Miss.1978); Jordan v. State, 365 So.2d 1198 (Miss.1979); and Gray v. State, 375 So.2d 994 (Miss.1979). To place any greater burden on the Court would only be requiring it to attempt the impossible. There have never been two identical crimes involving defendants with identical characteristics and I venture to say there never will be.

We must be careful, lest we impose so many restrictions, impossible of reasonable application, that the death penalty statutes will be, for all practical purposes, nullified. That is a matter for the legislature and not the courts.

The death penalty in this case was properly affirmed.

ROBERTSON, P. J., SUGG and LEE, JJ., concur.

PATTERSON, Chief Justice,

dissenting:

I dissent from the majority decision to affirm the death sentence. I do so because of my belief that justice requires a more proportionate sentence, “considering both the crime and the defendant,” prescribed by Mississippi Code Annotated section 99-19— 105(3)(c).

Alvin Culberson and Alvarese Pittman planned an armed robbery that resulted in a homicide. Although Culberson and Pittman were both indicted for capital murder, an offense for which they could have been put to death, Pittman was permitted to plead guilty to manslaughter for which he received a fifteen-year sentence and served only two and one-half years.

We have no record of the transaction, but apparently Pittman was accorded this singular treatment by the state in exchange for his testimony, the result being to lift from his shoulders the awesome burden of a probable death sentence. Consideration as dear as life, in my opinion, leaves the testimony for which it was given as questionable as if it had been purchased with cash. The dubious quality of Pittman’s testimony is compounded by his admission of perjury in making a false affidavit concerning the homicide. His testimony is too suspect to permit us justly, in my opinion, to ignore the disparity of sending one man to the gas chamber while his confessed accomplice roams free after two and one-half years of confinement. I think the termination of life by the state should rest upon a firmer basis and should not portray the appearance of such gross disproportions.

I do not share the apprehensions of the majority that prosecutorial discretion will be abolished by imposing a life sentence upon Culberson, nor do I think we will establish a rule that an accomplice can never be sentenced to death by imposing such sentence. The statute mandates a review of each case upon an individual basis, and I would restrict the views I have expressed to the peculiar circumstances of this case.

In conclusion, I would reverse for the imposition of a life sentence.

SMITH, P. J., and BROOM, J., join in this dissent.

SMITH, Presiding Justice,

dissenting:

I concur in the conclusion reached by Chief Justice Patterson in his dissent. The extreme leniency extended to Culberson’s accomplice, a confessed participant in the murder for which Culberson stands sentenced to die, presents an unacceptable disparity in the consequences visited upon these joint actors. Death for Culberson and a brief confinement for his accomplice reflects treatment approaching a denial of equal protection of the laws and which, in my judgment, is incapable of being justified by the practical necessities of what has become known as plea bargaining.

The conviction of Culberson rests, in substantial part, upon the testimony of the accomplice. This Court, in an unbroken line of decisions, extending back over many years, has adhered to the rule that testimony of an accomplice is to be viewed with caution and suspicion, although it may be sufficient to support a conviction. The sound reasons for the rule are set out in the many cases dealing with the subject and will not be repeated here.

A short imprisonment for the accomplice, who has confessed his guilt, and death for Culberson, who declined to plead guilty and whose conviction rests in large part upon the testimony of the accomplice, presents a situation which possibly may be warranted in some future case presenting different circumstances which might be found to justify it. But here, considering, as we must, the defendant, the crime, the nature of the evidence upon which the defendant was convicted, and all of the circumstances of the case, I am forced to conclude that Cul-berson’s conviction should stand but that he should not be put to death.

PATTERSON, C. J., and BROOM, J., join in this dissent.


source: Caselaw Access Project

author: LEE, Justice, for the Court:

license: Public Domain

text:
    Barry Joe ROBERTS v. STATE of Mississippi.
    No. 51552.
    Supreme Court of Mississippi.
    Dec. 5, 1979.

      J. W. Kellum, Sumner, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice, for the Court:

Barry Joe Roberts was convicted in the Circuit Court of Tallahatchie County of manslaughter by culpable negligence and was sentenced to twenty (20) years in the Mississippi State Penitentiary. He appeals and assigns two (2) errors in the trial below.

I.

Did the trial court err in overruling appellant’s motion for a peremptory instruction of not guilty?

In passing on this question, the Court considers all evidence favorable to the State, together with reasonable inferences flowing therefrom, and, if such evidence is sufficient to present a guilt question for the jury, the peremptory instruction should be refused. Warn v. State, 349 So.2d 1055 (Miss.1977).

On August 6, 1977, at approximately 7:00 p. m., Mrs. Mary Ella Bonner was driving her pickup truck in a southerly direction on Mississippi State Highway 35 between Charleston and Batesville. Two (2) other persons were riding in the cab of the truck with her, and five (5) children were riding in the bed of the truck. Appellant was driving an automobile in a northerly direction on said highway and, as the two vehicles approached each other, appellant’s automobile ran off the east side of the highway, came back upon it and collided with the Bonner truck in the southbound lane of travel. Brenda Gail Bonner, ten-year-old daughter of Mrs. Mary Ella Bonner, sustained a broken neck in the collision and expired at the scene.

Mrs. Louise Goad, who operated a store which dispensed alcoholic beverages, testified that, at approximately 5:30 p. m. on the date of the accident, appellant purchased beer for himself and a companion and also a six-pack of beer to carry with them. She observed that appellant had been drinking excessively at that time.

Mr. E. J. Dungan, a former law enforcement officer, saw appellant at approximately 6:45 p. m. on said day, driving north on Highway 35 at a high rate of speed, which he estimated at ninety (90) miles per hour. He went to the scene of the accident, observed the position of the cars and debris, and that appellant’s eyes were red. However, he did not testify that appellant was intoxicated.

Reverend W. T. Barkley and Margaret Barkley, his wife, were proceeding south on Highway 35 directly behind Mrs. Bonner’s truck before, and at the time of, the collision. He said that appellant’s car ran off the highway, turned sideways, came back upon it, turned sideways again, and collided with the Bonner truck in the southbound lane. He walked over to appellant’s ear and “It smelled like it was a beer truck wreck rather than a car.” Mrs. Barkley corroborated her husband as to' the details of the collision.

Mrs. Mary Ella Bonner testified that, as she was driving her truck south upon the highway, she saw appellant’s car approaching at an extremely high rate of speed, the car left the highway, swerved back upon it, went into a spin, and collided with her truck in the southbound lane of travel.

Thomas McLeod, Mississippi State Highway patrolman, went to the scene for the purpose of investigating the collision. He detected the odor of alcohol on appellant, who was unstable in his walking, was glassy-eyed and appeared to be under the influence of alcohol. Officer McLeod asked him what he was drinking, and appellant replied, “Well, I have been drinking beer all afternoon.” McLeod was of the opinion that appellant’s ability to operate a motor vehicle was impaired as a result of intoxication..

Appellant testified that he leaned over to pick up a tape for his tape player, which had fallen to the floorboard, and, in doing so, lost control of the vehicle, which resulted in the collision.

Culpable negligence, as defined by the Court, is negligence that is so gross and wanton as to evidence an utter disregard for the safety of human life. Smith v. State, 197 Miss. 802, 20 So.2d 701 (1945).

The fact that a person is intoxicated may be shown as a contributing factor to the collision. In the present case, it was the jury’s prerogative to determine whether or not appellant’s condition from drinking alcoholic beverages contributed to the tragedy, particularly since the highway patrolman testified that, in his opinion, appellant’s driving ability was impaired by alcohol. Under the facts of this case, there was a question for the jury as to whether or not appellant’s conduct was so gross and wanton as to come within the culpable negligence rule stated above.

II.

Did the trial court err in granting the State s Instructions S-l and S-2?

The instructions offensive to the appellant follow:

“S-l
The Defendant, BARRY JOE ROBERTS, has been charged by an Indictment with the crime of Manslaughter for having by his culpable negligence caused the death of BRENDA BONNER.
If you find from the evidence in this case beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that
(a) The deceased, BRENDA BONNER, was a living person; and
(b) That she died as a result of the Defendant’s gross negligence demonstrating a reckless disregard for the safety of human life in operating a motor vehicle in a reckless manner, while under the influence of an intoxicant or alcoholic beverages, on the wrong side of Highway No. 35N, while his operator’s license had been revoked or suspended by the Department of Public Safety, and in hitting and striking a vehicle in which the Deceased was a passenger with the vehicle operated by the Defendant, then you shall find the Defendant guilty of Manslaughter.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence, then you shall find the Defendant not guilty.”
“S-2
Culpable negligence is, as used in these instructions, conduct which exhibits or manifests a wanton or reckless disregard for the safety of human life, or such indifference to the consequences of the Defendant’s act under the surrounding circumstances as to render his conduct tantamount to wilfulness.”

Appellant relies upon Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941), as authority that the instructions constitute error, An instruction on intoxication was given in Cutshall and condemned as error. The instruction stated:

‘The Court charges the jury for the State that it is a violation of the criminal laws of the State of Mississippi for a person to operate a motor vehicle on a public highway while under the influence of intoxicating liquor; and if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Floyd Cutshall, unlawfully operated the pickup truck on public highway number 72 at a time when he was under the influence of intoxicating liquor, and in a manner constituting culpable negligence as defined in State instruction number 2, and that as a proximate result thereof Spangler Gregson was killed, then it is your sworn duty to find the defendant guilty as charged.’ ” 191 Miss, at 770, 4 So.2d at 291.

The error in the above instruction resulted from the fact that the court told the jury it could return a guilty verdict of manslaughter by culpable negligence if Cutshall was guilty of driving while under the influence of intoxicating liquors. As stated in Cutshall, a person may violate a traffic law and still not be culpably negligent and guilty of manslaughter, and, on the other hand, even though one does not violate the law yet he may be culpably negligent and guilty of the crime.

The Instruction S-l differs from that condemned in Cutshall. Instruction S-l (which placed a higher burden upon the State by requiring it to prove appellant’s guilt to the exclusion of every other reasonable hypothesis) submitted to the jury the question of whether or nor appellant was guilty of gross negligence demonstrating a reckless disregard for the safety of human life in operating a motor vehicle in a reckless manner while under the influence of alcoholic beverages. The Instruction S-2 defined “culpable negligence” and was a proper statement of the law. Cutchens v. State, 310 So.2d 273 (Miss.1975). Also, the appellant requested and was granted an instruction which was similar to S-2 in defining culpable negligence, and was similar to S-l(b) in the definition of culpable negligence.

We are of the opinion that no error resulted in the granting of said instructions and that the judgment of the lower court should be affirmed.

AFFIRMED.

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


author: BOWLING, Justice, for the Court:

text:
    Jeannie Sullivan HARRISON v. James Calvin SMITH and Painting Contractors, Inc.
    No. 51569.
    Supreme Court of Mississippi.
    Jan. 9, 1980.
    Rehearing Denied Feb. 20, 1980.

      Douglas M. Magee, Mendenhall, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Cary E. Bufkin, Jackson, for appellees.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice, for the Court:

The primary question in this appeal is whether or not the lower court erroneously reformed the verdict of the jury rather than requiring that the jury clarify the verdict.

The case originated in the Circuit Court of Simpson County. Appellant filed her suit against appellees for personal injuries sustained in a motor vehicle collision on October 7, 1977. She contended that she was operating her vehicle in a northerly direction on U.S. Highway 49 in Rankin County, when it was involved in a collision at the intersection of that highway and Scarborough Street in the Town of Rich-land. It suffices to say that the testimony of several witnesses was quite conflicting. Appellant and her witnesses testified that she was driving in a northerly direction on the inside lane of travel when she was suddenly struck in the rear by a truck operated by appellee Smith and owned by his employer, appellee Painting Contractors, Inc. Appellees and their witnesses contended, and evidence was presented thereon, that appellant suddenly cut in front of ap-pellee’s truck; that appellant applied her brakes and then started forward as if she were going through the intersection. It was contended that appellant stopped suddenly and forced appellee Smith to strike the appellant’s vehicle unavoidably.

After receiving numerous instructions and retiring to consider its verdict, the jury returned the following handwritten verdict:

We, the jury, find both plaintiff and defendant negligent to a degree with no damages assessed with a vote of 11 to 1.

The court accepted the verdict without any further activity on the part of the jury and reformed the verdict at the bench by holding that the verdict was for the defendants, and a judgment was so entered.

Appellees contend that the language of the verdict was clear that the jury was finding for the defendants; that the jury had found that even though appellees were negligent, this negligence was not a proximate contributing cause of plaintiff’s injury. Appellees further contend that plaintiff waived her rights by failing to object to the form of the verdict.

Mississippi Code Annotated section 11-7-157 (1972) provides:

No special form of verdict is required, and where there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment shall not be arrested or reversed for mere want of form therein.

In Henson Ford, Inc. v. Crews, 160 So.2d 81 (Miss.1964), this Court stated:

. [T]he basic test with reference to whether or not a verdict is sufficient as to form is whether or not it is an intelligent answer to the issues submitted to the jury and expressed so that the intent of the jury can be understood by the court. This well-established rule of law has long been recognized by this Court .

We, therefore, are faced with the question as to whether or not the verdict in this case is such that the intent of the jury may be understood in a reasonably clear manner. Both appellant and appellees asked for and received a comparative negligence instruction telling the jury that in the event it found both appellant and appellees negligent, it should reduce appellant’s recovery in proportion to her negligence. In the case of Wilburn v. Gordon, 209 Miss. 27, 45 So.2d 844 (1950), this Court held it was error under the comparative negligence statute for the lower court to give the jury the following instruction:

The Court instructs the jury for the defendant that if you believe from the evidence that plaintiff and defendant were equally negligent, then it is your duty to find for the defendant.

The Court stated that the above instruction was erroneously granted for the reason that the defendant would not be absolved from liability altogether, if both were negligent equally, but that plaintiff’s damages would be reduced by fifty percent.

Appellee contends that the finding of the jury in the present case that both parties were negligent to a degree was surplusage. In 89 C.J.S. Trial section 509, it is said:

Superadded words may be disregarded as surplusage only when they are meaningless. Findings of fact germane to the issues may not be disregarded as surplus-age. No part of the verdict, no matter how erroneous on its face, which is essential to make the finding responsive to the issues can be regarded as surplusage, nor can part of the verdict be disregarded if the verdict is ambiguous.

We do not here have a situation where a counterclaim was filed by appellees. There was only a declaration filed by appellant alleging negligence and a contention by ap-pellees that they were not negligent. In cases where a claim and counterclaim both are presented in the same cause, it is, of course, possible for the jury to find both negligent so that the claim and counterclaim are offset.

Regarding the contention by appel-lees that the judgment reforming the verdict should stand without a prior request from appellant before discharging the jury, this Court said in Saucier v. Walker, 203 So.2d 299 (Miss.1967):

The form of the verdict in this case is ambiguous, confusing and improper, and the attorney for the appellant should have requested that the jury be returned to the jury room to reword their verdict and to bring in a verdict in the proper form. In the absence of a request from the appellant’s attorney that this be done, the trial judge on his own motion, should have ordered the jury to return to the jury room to reform and reword their verdict and to bring in a verdict in proper form. In fact this Court placed this responsibility and duty squarely on the shoulders of the trial judge when it said in Universal C.I.T. Credit Corp. v. Turner, supra,
“The trial court was under the duty to see that loss of time and the expense of the trial should not be nullified by the failure of the jury to put their verdict in proper form.” (203 So.2d at 303).

It is inescapable that the jury by its verdict' affirmatively found appellant and appellee Smith negligent; this after being instructed to reduce any recovery appellant was entitled to receive by the extent of her negligence. The verdict and the comparative negligence instructions were inconsistent. Under the above quoted authorities, the lower court should have returned the jury to its room to further deliberate on a proper verdict. It was error to find from the verdict returned that the jury intended to find for the defendants under the instructions it had received.

REVERSED AND REMANDED.

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


text:
    Mary BOGGS v. Janice EATON et al.
    No. 51592.
    Supreme Court of Mississippi.
    Jan. 9, 1980.
    Rehearing Denied Feb. 20, 1980.

      Robert 0. Homes, Jr., Metairie, for appellant.
    Eaton, Cottrell, Galloway & Lang, W. Joel Blass, James B. Galloway, Mize, Thompson & Blass, Gulfport, for appellees.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   LEE, Justice, for the Court:

Mary Boggs brought suit in the Chancery Court of Harrison County, Honorable Frank W. Alexander, presiding, against Janice Eaton individually, and as administratrix of the estate of Fred and Charlotte Schustedt, seeking to remove clouds from her easement title, and to enjoin defendants from interference with her rights under the easement, and damages for such interference with her easement rights. The chancellor denied the relief prayed for, dismissed the bill of complaint and entered judgment for the defendants and Mary Boggs appeals.

I.

Did the chancellor err in dismissing the bill of complaint when the proof showed as a matter of law that appellant had valid title to the easement and appellees committed a trespass against her rights under said easement?

In the year 1908 Archibald Boggs and Edwin B. Lang were neighbors and adjacent property owners on the Mississippi Gulf Coast. A water well was drilled on the Lang property and, on March 24, 1908, Lang and Boggs entered into a written agreement whereby Lang, who owned the property on which the well was situated, granted an easement to Boggs and his assigns, which provided for a two-inch water pipe running from the well to the home of Boggs for the purpose of furnishing water to his property. The significant parts of the easement follow:

“That [Lang] for and in consideration of the sum of $100.00 * * * hereby * * * grants and conveys unto [Archibald Boggs], his representatives and assigns, the right to use and consume water from the artesian well * * * in the manner hereinafter described * * *.
The said [Boggs] shall have the right to use water from said well in any quantity he may desire or be able to obtain, so long as said well shall last, by means of the one pipe now connecting said well with premises of said Boggs, as hereinafter described, his said use of said water above granted to be only on the following described property, to-wit: The property owned by the said Boggs and described as being a lot of land facing on the Gulf of Mexico and bounded on the East by the property of_Boggs, on the West by the property of the grantor herein, on the South by the Gulf of Mexico and on the north by the L. & N. R.R.
It is further agreed and understood that the rights granted to the said Boggs to use said water shall be confined to his own use and that of his assigns on the property above described, and shall not apply to any party or parties to whom he may hereafter sell lots or to any lots so sold out of the property * * * but it shall only be used by him and his assigns on said plot of ground or premises above described so long as they are kept intact, or such part of said premises as. he may retain as curtilage of the house which he now occupies, and for that place only.”

Tragedy struck the Boggs and Schustedt families. Archibald Boggs and Bessie Boggs, his wife, died as a result of the 1947 hurricane on the Mississippi Gulf Coast. His devisee, Mary Boggs, appellant herein, acquired the Archibald Boggs property under his last will and testament and she has owned the property since 1947. The Lang property was acquired subsequent to 1948 by a Mr. and Mrs. Fred Schustedt, who lost their lives as a result of Hurricane Camille on or about August 17, 1969.

The house of Archibald Boggs was destroyed by the 1947 hurricane, but the water line from the Lang well was not affected by the hurricane and the water usage was not interrupted. A garage adjacent to the Boggs home was rebuilt as a residence and was occupied by appellant and her brother for approximately one (1) year and then by appellant’s tenants. That building, for all practical purposes, was destroyed by Hurricane Camille in 1969.

Subsequent to Hurricane Camille, the Corps of Engineers went upon the Schu-stedt property with heavy equipment for the purpose of cleaning up the area, and crossed the water line, which resulted in breaking and damaging the pipe. For the first time the water flow from the well was interrupted. Appellant employed a plumbing contractor, Harold Bowser, to replace the old line, or parts of it, with another two-inch pipe, completing the work in February, 1971. The cost of the repair work amounted to eight hundred fifty dollars ($850.00). After installation of the new pipe, appellees removed a section of same which cut off the water flow to the Boggs’ property. Prior to Hurricane Camille, the water usage had been continuous and uninterrupted, except that on occasions Mr. Schustedt would lower the pressure in the pipe. At such times, appellant, or her tenant, contacted Mr. Schustedt and persuaded him to resume the water pressure. Appellant resided in a house she had built, in place of the old Boggs home, approximately three hundred (300) feet north of the reconstructed garage but on the same Boggs property. At the time of trial, appellant was receiving water service from the City of Long Beach Water Lines.

Appellees contend that, unless the chancellor is manifestly wrong in his decision, this Court must affirm. The chancellor made no finding of fact, nor did he express his reasons for denying the relief sought. The principle of “manifest error” applies only to a factual situation. If the chancellor is manifestly wrong in basing his decision upon the facts, then this Court will reverse, otherwise, we will affirm. This rule does not apply on questions of law.

There is no dispute in the facts of this case. The parties entered into a lengthy stipulation and, when the appellant rested her case, the appellees also rested without adducing evidence. The question presented here involves the interpretation and construction of the written easement dated March 24, 1908, between the original parties, Archibald Boggs and Edwin Lang. All provisions must be given effect, if such reasonably can be done. In ascertaining the intention of the parties from the language of the instrument, the grant or reservation should be so construed as to carry out that intention, and, in case of ambiguity or doubt, a grant or reservation of an easement ordinarily will be construed in favor of the grantee. 25 Am.Jur.2d Easements and Licenses § 23, at 435 (1966); 28 C.J.S. Easements § 29, at 685-686 (1941); Ouber v. Campbell, 202 So.2d 638 (Miss.1967).

The first paragraph conveys the easement to Archibald Boggs, his representatives and assigns, viz, the right to use and consume water from the artesian well on Lang’s property. The argument of appel-lees that “assigns” does not cover appellant, who took the property under the last will and testament of Boggs is without merit. The general definition of “Assigns” is stated in 23 Am.Jur.2d Deeds § 219, at 263 (1965):

“In deed construction, the term ‘assign’ or ‘assignee’ denotes in law one to whom an assignment has been made, and comprehends all those who take either immediately or remotely from or under the assignor, whether by conveyance, devise, descent, or act of law.”

Paragraph 2 of the instrument grants the right to use water from the well in any quantity Boggs may desire, or be able to obtain, so long as the well shall last, by means of the one pipe connecting the well with the premises of Boggs. Appellees argue that the parties to the instrument intended that no pipe other than the original pipe should conduct water, and, since that pipe either had deteriorated or had been removed through repair, the rights of the grantees under the instrument were extinguished. We are of the opinion that such argument is not a reasonable interpretation of the provisions of the paragraph. If Hurricane Camille had occurred on the 30th day of March, 1908, and the pipe had been damaged by heavy equipment in cleaning up the debris, probably there would have been no argument about the right to repair said line. We think that a reasonable interpretation of said provisions is that it was the intention of the parties that Boggs be authorized to repair the pipe and line through the years as they required such repair. We also think that the clause in Paragraph 2 limited the grantee to the size of the pipe and the number of pipes (1) running from the well in order not to deplete the water in the well or reduce pressure of the water.

Appellant sold a parcel of the Boggs property and appellees next contend that such sale and conveyance of a part of the original property described in the easement instrument cancelled the easement. We construe Paragraph 3 to mean that the right to use water, granted in the instrument, was limited to Boggs, and his assigns on the original premises contained in the March 24, 1908 instrument, less any lot or parcel which may thereafter have been conveyed from the original premises. The argument of appellees to the effect that since the original Boggs house was destroyed, the curtilage around it ceased to exist and the present house three hundred (300) feet from the original Boggs house was not entitled to receive water from the well and line, is without merit. Curtilage may extend to outhouses, gardens, and property used for the enjoyment of the home place, and may even be large enough for cattle to graze upon. 25 C.J.S. Curtilage, at 82 (1966); Collier v. King, 251 Miss. 607, 170 So.2d 632 (1965). We construe the intention of the parties in Paragraph 3 was to grant Boggs the right to use water on the original premises, less and except those parts or parcels conveyed away from same.

We hold that the chancellor erred in his interpretation of the easement instrument, and in applying the law to same, and we reverse the judgment of the lower court and enter judgment here validating her right to the enjoyment of the water easement, and enjoining and restraining appel-lees from interfering with the due exercise of those rights under said easement. Insofar as appellees’ property is concerned, the easement is established along the original pipeline to the boundary of appellant’s property.

II. — III.

Did the chancellor err in refusing to admit the testimony of Harold Bowser, master plumber, as an expert in the field of plumbing with respect to damages?

Did the chancellor err on the question of damages?

Mr. Harold Bowser was offered by the appellant as an expert in the field of plumbing. The chancellor declined to admit his testimony as an expert, although practically all of it appears in the record. Bowser has been a master plumber for approximately twenty (20) years, during World War II he studied courses taught by the U. S. Air Force at Keesler Air Force Base, he was issued a license by the City of Pass Christian after passing an examination for master plumbers, and he has a considerable amount of experience in the field. Although the question of qualification of an expert is for the court, we are of the opinion that Mr. Bowser did so qualify and that his expert testimony should have been admitted. Ludlow Corp. v. Arkwright-Boston Manufacturers Mutual Ins. Co., 317 So.2d 47 (Miss.1975); Capital Transport Co. v. Sigrest, 254 Miss. 168, 181 So.2d 111 (1965); Mississippi Power and Light Co. v. Walters, 248 Miss. 206, 158 So. 2 (1963).

We have considered the evidence carefully with reference to the question of damages. The record does not indicate the condition of the entire line extending across the Schustedt property. In oral argument, counsel for the appellant acknowledged that his client has no idea of what would be required to repair and reopen the line. We are of the opinion that the facts of this case do not justify damages, either actual or punitive.

REVERSED AND RENDERED.

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


author: COFER, Justice, for the Court:

text:
    George B. COWAN et al. v. GULF CITY FISHERIES, INC.
    No. 51477.
    Supreme Court of Mississippi.
    Jan. 16, 1980.
    As Corrected on Denial of Rehearing Feb. 20, 1980.

      Karl Wiesenburg, William T. Reed, Pas-cagoula, for appellants.
    Frank J. Hammond, Jr., Moss Point, C. W. Ford, Melvin Mitchell, Pascagoula, for appellee.
    Before ROBERTSON, P. J., and BROOM and COFER, JJ.
   COFER, Justice, for the Court:

Appellees Gulf City Fisheries, Inc. (Gulf City) applied to the city council of Pasca-goula (council) for an order “directing the City Clerk to change or cause to be changed the official zoning map of the City of Pas-cagoula ... to show” Gulf City’s properties “as industrial.” This appeal is from an order granting Gulf City the relief it sought. Previously Gulf City had petitioned the council for an order rezoning a certain strip of land abutting the West side of Cedar Street as industrially zoned. The particular description of the land (the property) is not important to this decision. The petition of Gulf City was resisted by appellants George B. Cowan and wife, and by Mrs. Denise H. Wiesenburg, interested parties. Gulf City obtained a favorable decision before the Council and appellants appealed by bill of exceptions to the Circuit Court of Jackson County where the council’s decision was affirmed. Appellants Cowans have appealed here, assigning as errors of the lower court the following:

1. The circuit court erred in not reversing and vacating the city’s order of August 22, 1977, the City Clerk having correctly performed her duties under Ordinance No. 25-1973, the property of the appellee Gulf City Fisheries, Inc. not having been rezoned as industrial by such ordinance.
2. The circuit court erred in not reversing and vacating the city’s order of August 22, 1977, the circuit court’s appellate judgments of August 8, 1969, and December 11, 1972, being res judicata as to the zoning of the property of the ap-pellee Gulf City Fisheries, Inc. under the provisions of § 1601 of Ordinance No. 25-1973.
3.The circuit court erred in not reversing and vacating the city’s order of August 22, 1977, as ultra vires, null and void, the order being arbitrary, capricious, unreasonable and having been adopted in violation of the city’s ordinance, § 17-1-15 of the Mississippi Code of 1972, and Article 3 § 14 of the Mississippi Constitution.

The issue of zoning of this property has been in and out of court for almost a score of years, and we share the interested parties’ desire to put the issue at rest. We are of the conviction that such a final resolution must be arrived at, on due and proper notice to the people having a right to protest, and following a hearing or hearings at which all interested parties have an opportunity to be heard, which decision must be in accordance with the law governing such hearings and decisions and the facts adduced in such hearings or hearing. Unfortunately, we cannot say that such a conclusion has been arrived at and we are reluctantly constrained to reverse and render.

The issue here lends itself smoothly to a detailing of chronological happenings, which, in turn, will make the issue clearer of understanding.

Prior to October 3,1968, the property was zoned as residential.

On October 3, 1968, a comprehensive zoning ordinance was adopted by the council, wherein the property was zoned industrial.

An appeal was prosecuted to the circuit court from this classification. On August 8, 1969, a judgment was entered on that appeal finding that residential was the correct classification therefor and ordering that it have that classification. There was no appeal from that judgment.

On October 11, 1972, the council again zoned the property as industrial.

An appeal was again taken to the circuit court where, on December 11, 1972, judgment was entered reversing the council’s order finding that the 1969 circuit court judgment was res judicata, and returning the classification to residential.

On December 14, 1972, Gulf City filed a motion in the circuit court to correct the December 11, 1972, judgment next above noticed, and, on December 20, 1972, Gulf City filed suggestion of error and petition for rehearing in the cause. (As to be hereinafter set out, these motions remained in a pending status until May 23, 1974.)

Acting upon instructions of the council, the Pascagoula Planning Commission entered upon a project of bringing to date and revising Pascagoula’s zoning ordinance and map. Having prepared therefor, timely notice of hearings before the planning commission was given, and hearings were had by the planning commission-on October 15 and October 22, 1973. A zoning map had been prepared by some unidentified person, which was published as a part of the notice of the hearing. This map, in pertinent part, reflects a heavy line along the west boundary of Cedar Street, placing the property in an industrial zone, but with parallel diagonal hatch marks on the property, and showing in the legend that it was “in litigation.”

On both October 15 and October 22, 1973, the planning commission was given an opportunity to take a stand on whether the property was thereon zoned residential or industrial, and, at each invitation to do so, it took the position that the property was in litigation and that no action would be taken thereon until the litigation was ended. There appears on the minutes of the planning commission’s October 15, 1973, meeting a recognition that the industrial-residential border line ran to the west of the property. At the October 15, 1973, meeting Attorney Charles Ford appeared before the planning commission representing Gulf City and sought a change of the status of the property from “in litigation” to “industrial.” His appearance gave rise to this minute of the commission appearing in the record:

Thereafter Mr. Charles Ford, a local attorney, appeared representing Gulf City Fisheries and stated that on the proposed zoning map such property owned by Gulf City Fisheries on Cedar Street was shown as in litigation and requested that same be zoned industrial. Mr. Boardman (acting chairman) stated that since the area was presently in a court controversy, that the commission would not take any action on the same until the matter was settled by the courts. A written statement was submitted by Mr. Ford on behalf of Gulf City Fisheries, which statement is attached to these minutes. (Emphasis added).

Thereafter in the October 15, 1973, meeting the commission adopted a recommendation to the council that all applications for zoning and rezoning be denied without prejudice to such applicants’ appearance before the commission or other proper body, at the November regular meeting thereof, to apply upon proper public hearing, for such requested changes “based on change in circumstances in the makeup of the various areas involved from the original zoning of such areas.”

In the planning commission’s October 22, 1973, meeting an interested party protested that the zoning line here being considered should run along Cedar Street, and suggested that the council minutes for 1969 should be examined, which objection was noted.

Between the meeting of the commission on October 22, 1973, and the council’s meeting on October 23, 1973, the proposed ordinance and its zoning map were transmitted from the commission to the council and they were considered in the council’s meeting on October 23, 1973.

The council adopted an order, on the commission’s recommendation above noticed, in part as follows:

Now, therefore, it is ordered as follows:

1. That all applications for zoning or rezoning be denied without prejudice to the right of the various applicants to appear before the planning commission or any successor board or commission at its regular November meeting to apply, upon proper public hearing for the requested change in zoning based on a change in circumstances in the makeup of the various areas involved from the original zoning of such areas, if any. (Emphasis added).

Attorney Ford appeared at this October 23,1973, meeting on behalf of Gulf City and petitioned the Council to afford him . “an opportunity to be heard for the taking of testimony of witnesses and the viewing of evidence pertaining to this petitioner’s petition as filed with the planning commission.”

In the petition thus presented to the council, Gulf City alleged that as to its appearance before the planning commission:

. at said hearing on October 15 was not given the opportunity of presenting evidence and testimony in support thereof [its petition to have the property zoned industrial] and the said planning commission by its minutes, a copy of which is attached hereto, having found categorically along with many other petitions that said petition of this petitioner be denied and this petitioner, through its attorney of record, would distinctly aver herein that at no time during the meeting of said planning commission on October 15, 1973, was there any vote or decision reached by a vote of the members of the planning commission as to its petition for zoning of its land and that said minutes, as attached hereto, do not portray a true portrayal of the happenings and events of said meeting of October 15 and this petitioner affirmatively alleges that it has been denied due process under the laws of the State of Mississippi and the United States Government and that such action, if any, taken by the planning commission was discriminatory as to the petitioner and in violation of its right as a property owner within the municipality and contrary to the provisions of sections 3591 and 3592 of the Mississippi Code of 1942, as amended. (Emphasis added).

In adopting the proposed zoning ordinance, which became ordinance No. 25-1973, Ordinance No. 9-1968 was repealed, but the council took care, in the repeal thereof, to preserve rights of any pending action thereunder or other zoning ordinances. This was accomplished by section 1601 of Ordinance No. 25-1973, which is as follows:

This ordinance repeals and supersedes all previous zoning ordinances and amendments thereto including ordinance number 9-1968 [The earlier ordinance changed the zoning of the property to industrial, an action thereafter reversed as above noticed.] The repeal of ordinance number 9-1968 and such prior ordinance shall not make valid any use in violation of such ordinance, nor shall this ordinance be construed to abate any pending action under any of the provisions of such ordinance. (Emphasis added).

On May 23, 1974, on motion therefor, the motions in the 1972 appeal to the Jackson County Circuit Court, noted above, were withdrawn and that suit, No. 8667, and some others related thereto, were dismissed from the circuit court docket.

After the May 23, 1974, action in the circuit court the city clerk of Pascagoula, acting with the advice of counsel, one of Pascagoula’s city attorneys, altered the 1973 zoning map by removing the line between the industrial and the residential areas to the west boundary of the property here involved, and erasing the “in litigation” hatch marks from the map.

Gulf City on April 4, 1975, filed suit for writ of mandamus to require the city clerk to relocate the boundary line as it had appeared at the October 1973 action of the council. After the writ of mandamus was ordered, this Court, on appeal, reversed the judgment holding that mandamus did not lie. Cowan v. Gulf City Fisheries, Inc., 344 So.2d 724 (Miss.1977).

On May 19, 1977, Gulf City filed a petition with the then council requesting it to direct the city clerk to make the change that Gulf City had unsuccessfully sought in its mandamus suit.

After a hearing, the council, then in office, on August 22, 1977, adopted order as follows:

That the council hereby finds and determines that the zoning of the property in this proceeding is as of today zoned industrial and has been so zoned since October 28, 1973, and further that the city clerk is ordered to, upon the general change of the zoning map as of October 1, 1977, alter or cause to be altered the official zoning map to reflect that the property in question is zoned industrial. (Emphasis added).

Appellants appealed the action of the council, which action was thereon affirmed by the Jackson County Circuit Court from which the present appeal was taken.

We consider that it is quite clear from our detailing above of various skirmishes pertaining to the property that:

(1) The circuit court’s judgment of August 8, 1969, from which no appeal was ever taken, became res judicata of the proper zoning of the property at that time, and that it had that classification at all times during the October 1973 activities of the planning commission and the council. Miller v. City of Jackson, 277 So.2d 622 (Miss.1973).
(2) All interested parties who participated in the planning commission and the council deliberations accepted the status attached to it by the August 8, 1969, judgment and Gulf City was undertaking to get hearings before both bodies with a view to getting the residential status of it changed to industrial.
(3) Gulf City would not have made the public record which it made during those deliberations, had it considered as having been done what it was then undertaking to get done.
(4) The two bodies of Pascagoula did sufficient in their minutes and actions of October 1973 to cause the inescapable conclusion that they were not taking any action with reference to the zoning of this property.
(5) Both bodies knew the property was in litigation, suspended by Gulf City’s failure to procure consideration and action by the circuit court on its several postjudgment pleadings noticed above.
(6) Whether the bodies recognized it or not, an appeal to the circuit court suspended the jurisdiction of the bodies in the matter of zoning the property whose zoning was the subject matter of the appeal. This Court has held this to be true on appeals from lower courts. Dunavant Enterprises, Inc. v. Ford, 294 So.2d 788, 792 (Miss.1974); Crocker v. Farmers & Merchants Bank, 293 So.2d 444-445 (Miss.1974); Riley v. Richardson, 258 So.2d 419, 420 (Miss.1972). The same principle should control in appeals from legislative bodies, and we hold that it does so control. 101 C.J.S., Zoning § 374, p. 1225 (Supp.1975); Kramer v. Board of Adjustment, Sea Girt, 80 N.J.Super. 454, 194 A.2d 26 (1963).
(7) As hereinbefore observed, Gulf City desired and petitioned the council for a hearing on the merits as to the zoning of the property. Such hearing was not afforded, and Gulf City took no appeal from ordinance 25-1973. Mississippi Code Annotated, section 11-51-75 (1972).
(8) The council denied all petitions for zoning and rezoning without prejudice to petitioners’ right to have full public hearing before the planning commission or other body at its November 1973 meeting. The record is silent that Gulf City availed itself of the opportunity thus reserved to press its prayer before such body at such date.
(9) The council, in office in August 1977 had no authority to declare the property’s zone to have been industrial from October 23, 1973, because such declaration was without foundation.
(10) The council exceeded its lawful authority in declaring the 1977 zoning to be industrial, (a) without giving public notice of such hearing, section 17-1-17, and (b) with no finding of material change. Watts v. City of Wiggins, 376 So.2d 1072 (Miss.1979), and Underwood v. City of Jackson, 300 So.2d 442 (Miss.1974).

We, accordingly, find the property residential in its zone classification, and reverse and render.

REVERSED AND RENDERED.

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