author: LEAR, Judge.

text:
    Leonard B. JACKS v. BANISTER PIPELINES AMERICA et al.
    No. 14063.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied July 27, 1981.

      Roy Maughn, Baton Rouge, for Leonard B. Jacks.
    Calvin Hardin and L. Michael Cooper, Baton Rouge, for Banister Pipelines America and Insurance Company of North America.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This is a workmen’s compensation case brought by Leonard B. Jacks against his employer, Banister Pipelines America, and its workmen’s compensation insurance carrier, Insurance Company of North America, arising under LSA-R.S. 23:1221, as amended by Act 583 of 1975, relative to disabilities.

Plaintiff suffered an injury to his right eye, which resulted in a loss of vision, while working as an equipment mechanic and utility welder for his employer, through an industrial accident which happened on January 16, 1979. The facts as to plaintiff’s employment, wages, the accident and the injury are not in dispute, and the parties have stipulated that the insurer has paid plaintiff’s medical expenses and are paying plaintiff compensation benefits according to the schedule of payments in LSA-R.S. 23:1221(4)(i) for the loss of an eye.

The trial court rendered judgment in favor of plaintiff for permanent partial disability for a maximum of 450 weeks, subject to a credit for compensation paid, but denied plaintiff’s claim for penalties and attorney’s fees.

Plaintiff appealed contending that he is totally and permanently disabled as a result of the eye injury sustained in the job-related accident; that defendants are not entitled to credit for the amounts paid plaintiff; and that plaintiff is entitled to penalties and attorney’s fees for defendants’ arbitrariness in failing to pay compensation to him promptly and properly. Defendants also appealed, contending that plaintiff’s award should be limited to schedule benefits under LSA-R.S. 23:1221(4)(i).

We find no error in the conclusions of the trial court. The preponderance of the evidence does not support plaintiff’s claim for permanent total disability. The judge correctly found that plaintiff sustained permanent partial disability under LSA-R.S. 23:1221(3). We affirm.

The trier found that Jacks, as a result of his vision loss, was disabled from “performing certain duties required by his job as well as he could before the accident.” He is no longer able to perform precision welding, catch tools thrown by a job-helper, read numbers on certain parts necessary in his work, drive at night, operate certain equipment, walk on irregular surfaces and climb ladders. The trial judge concluded that Jacks was definitely handicapped and was unable to compete with able-bodied employees in the same job market.

We are convinced by the evidence that plaintiff’s situation falls squarely within the definition of “partial disability” in LSA-R.S. 23:1221(3), as amended by Act 583 of 1975. Under the clear wording of the amended statute, if an employee is unable to “perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description ... ”, [emphasis added] but is able to engage in gainful activity at some job for which he is fitted by education, training or experience, he is considered partially disabled. Kilboume v. Armstrong, 351 So.2d 802 (La.App. 1st Cir., 1977); Ra-cha/ v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3rd Cir., 1978), writ denied, 358 So.2d 645 (La.1978).

We hold the evidence supports a finding of disability in addition to the permanent loss of vision of one eye. Where there is physical injury with resulting appreciable employment disability, the disability provision, rather than the statutory schedule of payments for special losses, may serve as the criterion for determining the compensation due. See Farrar v. Guy Atkinson Company, 325 So.2d 893 (La.App. 2nd Cir., 1976).

In affirming the trial court’s finding of permanent partial disability under the particular facts presented in this case, we find that our decision in the case of LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir., 1977), writ denied, 351 So.2d 174 (La.1977), is distinguishable on the facts. In LeBlanc, supra, the plaintiff’s injury was not permanent and his medical “disability” was curable. And, in LeBlanc, supra, it was determined that plaintiff had recovered from his injury, at which time his disability ceased. In the case now before us, plaintiff cannot recover from his injury, the loss of his eye, and he therefore remains partially disabled.

The trial court gave the defendant “credit for the total compensation previously paid ... to be applied against all past and future benefits owed by partial disability.” Plaintiff complains that no credit should be allowed in this matter. We disagree.

Louisiana Revised Statute 23:1221 provides for a credit to the employer when it has paid compensation for partial disability to the employee under Subdivision 3. In addition, Louisiana Revised Statute 23:1223 provides that when an employer pays compensation under temporary total disability (Subdivision 1), total and permanent disability (Subdivision 2), or partial disability (Subdivision 3), the amount of such payment shall be deducted from any compensation allowed under the scheduled loss (Subdivision 4).

The opposite is in our case — the employer has paid initially, after demand, benefits under the scheduled loss (Subdivision 4) and now the man is adjudged partially disabled. The law is void as to this situation.

The concept behind these two above-mentioned statutes is to give credit for an employer who pays compensation when an adjudged disability is actually rendered. We feel that this concept should apply in our case, when the employer has paid benefits under Subdivision 4 and the employee is eventually adjudged partially disabled. Our position is also supported by the fact that this employee was actually owed nothing since he was partially disabled and continued to work at the same job and same or better rate of pay. Under Revised Statute 23:1221(3), the employee would not have been owed anything. But faced with the penalties and attorney’s fees for arbitrarily refusing to pay, the employer commenced benefits under the schedule of law. This is favored under the law and the employer should be given credit for any past compensation paid. We, thus, affirm the credit given to the employer for the amount of compensation paid to the employee.

As to plaintiff’s claim for penalties and attorney’s fees, plaintiff has not been entitled to collect any compensation, because of his earnings since his injury. Defendant, therefore, incurred no liability for payment of statutory penalties or attorney’s fees.

For the reasons assigned, the judgment of the district court is affirmed. Defendants are cast for costs of this appeal.

AFFIRMED.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Willie HOWARD v. Dee CALLAHAN, Earl Fisher and International Harvester Company. Willie HOWARD v. HERCULES GALLION COMPANY and Peabody Waste Management Corporation. Willie HOWARD v. TERREBONNE PARISH POLICE JURY, et al.
    Nos. 14113, 14114 and 14115.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied July 27, 1981.

      Gordon Hackman, Boutte, for plaintiff and appellant.
    Stephen N. Elliott, Metairie, for defendant and appellee International Harvester Co.
    Joseph A. Reilly, Norval Rhodes, Dist. Atty., Houma, for defendant and appellee Terrebonne Parish Police Jury.
    Charles Hanemann and William S, Marshall, Jr., Houma, for defendants Gray & Co., North River Insurance Co. and U.S. Fire Insurance Co.
    Robert E. Kerrigan, Jr., New Orleans, for defendants and appellees.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Willie Howard, appeals the dismissal of International Harvester Company from his consolidated suits on a motion for summary judgment. Agreeing with the trial court’s finding that there is no genuine issue of material fact, we affirm the judgment of the trial court in dismissing International Harvester from the suit.

Appellant instituted three separate suits arising from an injury he sustained while serving as a garbage collector for the Parish of Terrebonne. In this accident, appellant’s fingers were crushed when they were caught in the “hook, chain and cable mechanism provided for emptying bins of garbage.” The hook, chain and cable mechanism were all part of the trash compactor.

International Harvester moved for summary judgment contending that it never manufactured, sold, installed or authorized anyone to install the trash compactor on the cab and chassis of the International Harvester vehicle. In support of its motion, International Harvester introduced the affidavit of H. E. Entwisle, a staff engineer in the Product Integrity Group of the Truck Division of International harvester Company. Entwisle stated that International Harvester only sold the cab and chassis and that no trash compactor was manufactured, sold, or installed by the company.

Appellant asserts that the trial court erred in granting the motion for summary judgment since this suit had not progressed sufficiently at this time for the plaintiff to have adequate facts to oppose the motion. Appellant filed an Opposition to Motion for Summary Judgment and attached the affidavit of his attorney. The affidavit stated that the attorney has had insufficient time within which to obtain depositions and discovery so as to admit or deny the allegations of the affidavit filed by International Harvester.

We take note that his suit was instituted on March 10, 1977, and the hearing on the motion was conducted on January 12, 1979. The only discovery method used by the appellant was a set of interrogatories filed the same day suit was filed. International Harvester has filed interrogatories that have been answered by the appellant but a request for admissions filed on their behalf have not been answered.

The admissions requested by International Harvester were never denied so we must accept them as true. La.C.C.P. art. 1496; Harris Mortg. Corp. v. Johnson, 383 So.2d 801 (La.App. 1st Cir. 1980). The two admissions that aid International’s cause is the admission that Peabody International, Inc. installed the trash compactor and that International Harvester did not install the trash compactor manufactured by Peabody International, Inc.

Louisiana Code of Civil Procedure articles 966 and 967 set forth the fundamental principles of summary judgment. Article 966 provides in pertinent part the criteria for summary judgment:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and. that mover is entitled to judgment as a matter of law.”

Article 967 provides for resolving certain situations such as the one we have in this case.

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is genuine issue for trial. If he does not so respond, summary judgment if appropriate, shall be rendered against him.
“If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

The Supreme Court in Chaisson v. Domingue, 372 So.2d 1225, 1227 (La.1979) provided an explanation of the ’ above mentioned articles.

“It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966; Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

In Sanders v. Hercules Sheet Metals, Inc., 385 So.2d 772 (La.1980), the Supreme Court dealt with the problem of the party opposing the motion offering no evidence. The Court therein stated:

“On a motion for summary judgment the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings.” Sanders, supra. P. 775. See Jones v. American Bank & Trust Co., 387 So.2d 1360 (La.App. 1st Cir. 1980); and Continental Casualty Company v. McClure, 313 So.2d 260 (La.App. 4th Cir. 1975).

We must determine whether International Harvester has carried its burden of proving there is no genuine issue as to a material fact and it is entitled to judgment as a matter of law. Plaintiff has set forth in his original petition as well as in his first amended petition the following specifications of negligence:

“Violating the standards of due care; Failing to adequately instruct and superintend activities for person under their control;
Manufacturing a highly dangerous instrumentality with no warning and no safety devices;
Failing to observe safety precautions that may have come with the vehicle;
Such negligents or breach of warranties that may be shown at the trial or during discovery hereof.”
“Failing to provide adequate and safe instructions for the use of said vehicle;
Failing to manufacture the bin-dumping device in such a fashion that it could not become entangled with other parts of the vehicle;
Failing to provide warning devices when the crusher was activated;
Failing to provide safe guards for the operation of dangerous equipment;
Failing to discharge defendant’s duties of due care to the Police Jury, once said instructions were undertaken.”

These acts of negligence deal with the manufacture, installation, or sale of the trash compactor and not the truck itself. Therefore, International Harvester by way of its affidavit has carried its burden of proving no genuine issue of material fact as to them. Appellant is therefore required to show what facts are in dispute or give stated reasons why he cannot. Harris, supra; Miller v. East Ascension Telephone Co., 263 So.2d 360 (La.App. 1st Cir. 1972); writ refused 262 La. 1121, 266 So.2d 430 (1972).

Appellant does not dispute any fact in the affidavit filed by International Harvester. He only claims that he has insufficient time to take dispositions and discovery to deny or admit these allegations.

Article 967 grants to the trial court discretion to reject the application for judgment when a party opposing the motion cannot by affidavit provide facts to justify his contention. In this case we do not find any abuse of discretion. The length of time between the filing of the suit and the date the motion for summary judgment was heard is more than adequate time for establishing the facts of liability as to this defendant. Miller, supra; and White v. Charity Hospital of La. in New Orleans, 239 So.2d 385 (La.App. 4th Cir. 1970). Since there is no genuine issue as to any fact and the defendant has established that it is entitled to judgment as a matter of law, the trial court was correct in granting the motion. Harris, supra; Jones, supra; Miller, supra; Joseph v. Doe, 377 So.2d 875 (La. App. 4th Cir. 1979); and Continental, supra.

For the reasons assigned the judgment of the trial court dismissing International Harvester from these consolidated cases is affirmed at appellant’s costs.

AFFIRMED.


text:
    Ted YOKEUM v. ITT HENZE SERVICE.
    No. 14160.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    July 27, 1981.
    Hobart O. Pardue, Jr., Springfield, for plaintiff.
    Michael S. Guillory, Phillip T. Hager, New Orleans, for defendant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff, Ted Yokeum, filed this civil action seeking workmen’s compensation benefits for an allegedly job-related back injury. The injury allegedly occurred while plaintiff was working for defendant, ITT Henze Service, but on location at the New Orleans Public Service, Inc. (NOPSI).

After trial on the merits, the district court found that plaintiff failed to prove the injury was sustained within the course and scope of his employment. Judgment was rendered in favor of defendant, dismissing plaintiff’s action at his cost. Plaintiff appealed.

On appeal, plaintiff contends that the district court manifestly erred in failing to find the injury job-related. He argues that his testimony corroborated by that of his wife was sufficient to prove that the injury was sustained within the course and scope of his employment. Plaintiff further argues, that should this court reverse the decision of the district court, he is entitled to penalties and attorney’s fees for defendant’s arbitrary refusal to honor his workmen’s compensation claim.

Plaintiff testified that his back injury occurred in early October, 1978, on a job for NOPSI in New Orleans, Louisiana. (The records produced by defendant show that this job was actually performed between September 14 and September 27, 1978.) Mr. Yokeum stated that the job required the hoisting of heavy equipment up several flights of stairs and the moving of a 700— 800 pound valve for a short distance.

Plaintiff claims he began to experience substantial back pain while performing this work but decided to continue working. He stated that he did mention this injury to several persons, including his on-the-job supervisor and two co-workers.

Mr. Yokeum consulted Dr. Charles H. Gideon, Sr., a chiropractor, for his back pain on October 30, 1978. During his interview with Dr. Gideon, the attending nurse took notes that indicated that plaintiff possibly was suffering from a lumbrosacral sprain with sciatic neuritis. These notes further indicated that plaintiff’s job required heavy manual labor, which had caused plaintiff pain since his injury. No specific notation was made that the injury occurred at work. However, Dr. Gideon subsequently forwarded a bill too defendant characterizing the injury as job-related.

Plaintiff first notified his plant supervisor, Mr. Charles Finley, in early November that he had injured his back on the NOPSI job and was being treated by Dr. Gideon. Mr. Finley related the gist of that conversation as follows:

“Mr. Yokeum came into the office and asked who was gonna pay his chiropractor’s bill. I asked him what happened, and he said he thought he hurt his back on the job. I asked him if he had any witnesses, he said no. I asked him if he could tell me where it was and he said I think it was at NOPSI.”

Mr. Finley further testified that he made no report of the injury because he felt it was not job-related and told plaintiff that defendant would not pay his doctor bills. He suggested that plaintiff file a claim with his health insurer.

Subsequently, plaintiff sought the medical treatment of Doctors Allen C. Fairies and John Clifford. He told both of them that he had injured his back while doing yard work. However, plaintiff argues that this history was suggested by Mr. Finley, and was adopted in a desperate attempt to obtain medical treatment. Mr. Finley denies that he instructed plaintiff to fabricate this explanation.

Plaintiff’s wife testified that her husband complained to her that he injured his back on the NOPSI job. Plaintiff’s neighbor also testified that plaintiff made the same statements to him. Although plaintiff claimed to have told several co-employees of his injury, only Howard McNeely was called to testify at trial. Mr. McNeely denied that plaintiff had ever mentioned any back injury sustained on the NOPSI job.

The testimony of the claimant, if corroborated by other credible evidence, is sufficient to support a claim for workmen’s compensation benefits. Wright v. Red Ball Motor Freight, Inc., 315 So.2d 344 (La.App. 1st Cir. 1975). However, the claimant must establish his claim by a preponderance of the evidence, i. e., the evidence taken as a whole must establish that it is more probable than not that the injury resulted from a work-related accident. Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769 (La.App. 1st Cir. 1974), writ denied, 294 So.2d 823 (La.1974). In making such a determination great weight is accorded to the district court’s evaluation of the credibility of witnesses and the findings of fact of the district court will not be disturbed on appeal unless shown to be manifestly erroneous. Montgomery v. Delta Concrete Products, Inc., supra.

After carefully reviewing the record in the instant case, we cannot say that the district court’s finding that plaintiff’s injury was not job-related is clearly wrong. We find no manifest error therein. Accordingly, the issue regarding penalties and attorney’s fees is moot.

For the foregoing reasons, the judgment of the district court is affirmed at plaintiff’s costs.

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    E. Rigby MAUPIN, Martha Ellen Maupin & Susan Maupin v. ESTATE OF J. Rigby PERRY, Deceased, Shouphie Habeeb, Executor and Robert J. Perry, Nephew.
    No. 52571.
    Supreme Court of Mississippi.
    June 3, 1981.
    Rehearing Denied July 8, 1981.
    Landman Teller, Jr., Teller & Teller, David M. Sessums, Varner & Parker, Vicksburg, for appellant.
    William M. Bost, Jr., Buddy Dees, Ellis, Braddock & Bost, Vicksburg, for appellee.
    Before PATTERSON, C. J., and LEE and HAWKINS, JJ.
   PATTERSON, Chief Justice,

for the Court:

This appeal is from the Chancery Court of Warren County wherein Shouphie Ha-beeb, in his capacity as executor, sought construction of the residuary clause in the will of J. Rigby Perry. Mr. Perry died testate on May 28, 1979, at the age of 103. He had never married and had no children. At the time of the execution of his will, August 31, 1978, Perry had only one living nephew, Robert Perry. It had been eighteen years prior to the will execution that he had a living niece, a fact which the testator was fully aware. The clause of which construction was sought, clause six, disposed of the residue through the following words:

All the rest and residue of my property, real, personal or mixed, wheresoever situated, I hereby devise and bequeath to my nieces and nephews who survive me, in equal shares.

Shouphie Habeeb, the executor, sought construction of the term “nieces and nephews” as it had application to the existing facts at the time the will was made. At trial, a genealogical chart was introduced into evidence 1 which establishes without contradiction the heirs-at-law of the testator. See Appendix.

1. The actual exhibit was not received by this Court; therefore, the chart is taken from a copy attached to one of the parties’ brief.

The Appellants, as shown on the genealogical chart, include the survivors of the Maupin and Farnsworth branches, except for the children of E. Rigby and Susan Maupin. Specifically, the Appellants and their relationships to the testator are as follows:

(1) E. Rigby Maupin, great-nephew;
(2) Susan Maupin (now Tarrance), great-niece;
(3) Martha Maupin, great-niece;
(4) Leone Farnsworth (now Dingman), great-niece;
(5) Bruce Farnsworth, great-great nephew;
(6) Perry Farnsworth, great-great nephew;
(7) Blake Farnsworth, great-great nephew; and
(8) Jim March, great-nephew, who survived Mr. Perry and then died.

The Appellants contend that great and great-great nieces and nephews are included and should take under the term “nieces and nephews” in the residuary clause. At trial, numerous witnesses, interested and disinterested, gave testimony which evidenced that Perry, the testator, referred to the Appellants as niece or nephew rather than great or great-great niece or nephew. The trial court construed the term “nieces and nephews” to mean only the children of the brothers and sisters of the testator, to-wit: Robert J. Perry, the sole surviving nephew. The Court stated:

[T]he court is of the opinion that the Testator considered the class composed in the residuary devise to have more than one member, probably several members, but the proof does not satisfy as to who the Testator intended to compose the class. The Executor, a longtime trusted friend of Testator, testified to the same dilemma.
In the absence of satisfactory proof of the intention of the Testator, the Court must reluctantly resort to the rule of construction that, even if it appear some other meaning was intended, where that other meaning is not reasonably clear, the word will be construed according to its ordinary established meaning.
It is therefor [sic] the opinion of this Court that “nieces and nephews” must be construed to be the children of the brothers and sisters of the Testator.

We are of the opinion the court did not err in holding the residuary clause ambiguous. We so decide for three reasons. First, the testator used the plural term “nieces and nephews” at a time when he was aware that he had not had a niece for some eighteen years and that he only had one living nephew. Second, it is apparent the testator intended to include more than one person in the residuary clause when a later clause of the will states:

Should any taker under this Will or anyone receiving an interest in property includable in my gross taxable estate but not passing under this Will, become an adverse party in a proceeding for the probate of this Will or become an adverse party in any other action the result of which would be to void or to avoid any provision of this Will, then such taker shall forfeit his or her entire interest hereunder and such interest shall pass as a part of the residue of my estate; provided, however, that if such taker is one of the takers of the residue, that taker’s interest shall be divided proportionately among the other takers of the residue. This paragraph shall not be construed to limit the appearance by anyone as a witness in any proceeding for the probate of this Will, nor to limit the appearnce [sic] of anyone in any capacity in a proceeding for its construction, (emphasis added).

The third reason we think the clause is confusing is that the proof shows that Perry referred to various great and great-great nieces and nephews simply as his niece or nephew.

When an ambiguity exists in the language of a will, parol evidence is admissible for the purpose of determining the intent of the testator. E. g., Strickland v. Delta Inv. Co., 163 Miss. 772, 137 So. 734 (1931). The first and most important rule in the construction of wills is that the intention of the testator should prevail. E. g., Rosenbaum v. Fliegelman, 375 So.2d 223 (Miss.1979); Nobles v. Sanders, 370 So.2d 703 (Miss.1979).

However, we are unable, as the trial court was, to ascertain from the questioned clause arid the evidence the intent of the testator. We do think he meant to leave the residue to more than one person for the reasons mentioned earlier. The evidence does not enable us to determine with reasonable certainty just which of the great and great-great nieces or nephews were intended to be included in the class in the residuary clause. To illustrate, the testimony does not show that the testator referred to the children of E. Rigby Maupin or Susan Maupin Tarrance, who were great-great nieces and nephews, as simply niece or nephew. These four children are in equal blood relationship to the testator as Bruce, Perry, and Blake Farnsworth, who as Appellants claim a share of the residue. We are of the opinion this Court should not speculate which óf the “nieces and nephews” were to be included in and take under the questioned clause.

The trial court, in our opinion, properly concluded the clause as used was ambiguous, but we think it erred in its resolution by giving literal construction to the word “nephew” thereby limiting the devise to that person. The ambiguity arises from the uncertainty of designating the intended recipients. Perhaps the situation can be better expressed by stating the testator’s obvious intent was to benefit more than one nephew, but we are unable to designate which of the nieces and nephews were intended to be included in the class. From this inability of determination, we opine that we should indulge a rule of construction more likely to assure a just, natural and reasonable disposition of the residuary estate. To this end we think the residuary estate should descend under the laws of descent and distribution as this would more nearly accomplish the testator’s intention of leaving the residue to more than one person, as well as being in accord with the general law.

In Patterson v. Patterson, 150 Miss. 179, 191, 116 So. 734, 735 (1928) we stated:

It is a cardinal rule of construction that a will should be so construed, if possible, as to effectuate the purpose of the testator, and in order to ascertain the purpose and intent of its maker, the whole text of the will must be taken into consideration; and where the language of the will is ambiguous and the intent of the maker obscure, a construction which will effect a just, natural, and reasonable disposition in accordance with the laws of descent and distribution is favored, unless there is a manifest intention to the contrary....

See also Mississippi School for the Blind v. Armstrong, 216 Miss. 348, 62 So.2d 369 (1953); In re Raworth’s Estate, 211 Miss. 780, 52 So.2d 661 (1951); Cross v. O’Cavanagh, 198 Miss. 137, 21 So.2d 437 (1945).

This parallels the general rule elsewhere. In 4 Bowe-Parker, Page on Wills § 32.14, at 289 (1961) it is stated:

Until evidence of the surrounding circumstances is heard, it cannot be determined whether or not a will is sufficiently definite. If, after the admission of all evidence which the law allows to be admitted, the court is unable from face of the will and from the consideration of such evidence, to determine testator’s intention, the court will be compelled to declare the will, either in whole or in part, as void and unenforceable for uncertainty.

Also, 80 Am.Jur. Wills § 1139, at 250 (1975) states:

[T]he law favors that construction of a will which conforms most nearly to the general law of inheritance; and where the meaning of a will is ambiguous, a construction will be favored that will dispose of the property of the testator in the manner in which the law would have disposed of it had he died intestate.

In sum, we are of the opinion the residuary clause is void because of its uncertainty and ambiguity and that the residuary estate mentioned in clause six of the will should descend under the laws in this state governing intestate property.

The Appellee raises other issues not addressed in this opinion; however, we do not address these issues because they were not raised on direct appeal and the Appellee has filed no cross-appeal. Ricketts v. Rick-etts, 152. Miss. 792, 119 So. 194 (1928).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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


author: PATTERSON, Chief Justice:

text:
    Genetta Cameron CARTER v. Bertha BREWTON, et al.
    No. 52687.
    Supreme Court of Mississippi.
    July 15, 1981.
    William Harold Jones, Petal, for appellant.
    Garnett Harrison, Hattiesburg, for appel-lees.
    Before PATTERSON, C. J., and LEE and HAWKINS, JJ.
   PATTERSON, Chief Justice:

This is an interlocutory appeal originating from the Chancery Court of Forrest County, wherein Genetta Cameron Carter sought partition of “118 acres, more or less” and joined as defendants all co-tenants, being the heirs-at-law of one Jennie Ryan, Carter’s grandmother. The appellees, Ever Lee Brewton and Frances Brewton, widows of two deceased co-tenants, reside on portions of the property sought to be partitioned. The widows assert as an affirmative defense that the property upon which they maintain homes is exempt from partition pursuant to Mississippi Code Annotated § 91-1-23 (1972), the homestead exemption act. The chancellor below entered a decree sustaining the affirmative defenses of the widows under the statutory authority of § 91-1-23.

From this decree, Carter appeals, contending the trial court erred in sustaining the affirmative defenses. We reverse and remand for further proceedings consistent with this opinion.

The issue we decide on this appeal is whether the widows’ residences and lots are exempt from partition by the co-tenants of their deceased husbands. Two statutes must be considered.

Partition of land by coparceners is statutorily provided in Mississippi Code Annotated § 11-21-3 (1972) as quoted below:

§ 11-21-3. Partition by decree of chancery court.
Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five, may be made by decree of the chancery court of that county in which the lands or some part thereof, are situated; or, if the lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county.
However, any person owning an indefeasible fee simple title to an undivided interest in land may procure a partition of said land and have the interest of such person set apart in fee simple free from the claims of life or other tenants, re-maindermen or reversioners, provided the life or other tenants, and other known living persons having an interest in the lands, are made defendants if they do not join in the proceeding as complainants or petitioners.

However, Mississippi Code Annotated § 91-1-23 (1972) protects a widower or widow from partition during his or her use or occupancy as follows:

§ 91-1-23. Exempt property not to be partitioned in certain cases.
Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood as long as it is occupied or used by the widow, unless she consent. Likewise, where a decedent leaves a widower to whom, with others, her exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during the period of his being a widower as long as it is occupied or used by the widower, unless he consent.

We are of the opinion that the property is subject to partition because if the coparceners had a right to partition during the lives of the widows’ husbands, this right is not enjoined by the deaths of the coten-ant-husbands. In Solomon v. Solomon, 187 Miss. 22, 192 So. 10 (1939), J. M. Solomon and his son, J. L., each owned a 1/2 interest in a house and lot. J. L. married and lived in the house. The father died and left J. L. and four other children as his heirs. J. L. and his family continued to reside in the house until 1933. After J. L.’s death, his widow and children continued to occupy the home and lot. The co-tenants of J. L. sued the widow for partition of the property. The widow sought to enjoin the partition based on the statutory homestead exemption. This Court held the property to be partitionable and stated:

What J. L. [the son] Solomon here owned at the time of his death was not the whole interest in this house and lot but only a three-fifths interest therein, so that this three-fifths interest is all of the property to which the statute applies. The exemption of this three-fifths interest in the property from subjection to the payment of Solomon’s debts results from the fact that he occupied it as a homestead. This occupation of the property by him as a homestead did not enlarge his interest therein as against his cotenants, and it was at all times while he lived subject to partition at the suit of his cotenants. This right of his cotenants is not expressly withdrawn from them by Section 1412 because of Solomon’s death, leaving a widow and other heirs, and there is nothing in it or the purpose which it seeks to accomplish that requires it to be so construed as to withdraw by implication this right of partition from J. L. Solomon’s cotenants. 187 Miss, at 26, 192 So. at 10.

In Dillon v. Hackett, 204 Miss. 464, 478, 37 So.2d 744, 746 (1948), we reaffirmed our decision in Solomon as follows:

This Court held in Solomon v. Solomon, 187 Miss. 22, 192 So. 10, that where the wife of a tenant in common owning an undivided interest in land, occupies the land as a homestead, the occupation of the property by her does not enlarge her interest therein as against her husband’s cotenants, but the land is at all times subject to partition by the cotenants.

We are of the opinion that since the deceased husbands’ interest in the realty was subject to partition during their lifetime, the right of partition continues after their death and is not withdrawn by the widows’ homestead occupation.

Although the land is subject to partition, we are of the opinion the widows should retain their houses as improvements on the land, if practicable; for we held in Bennett v. Bennett, 84 Miss. 493, 36 So. 452 (1904), that a tenant in common who has ^improved the land is entitled to have such land allotted to him or her if there is a partition in kind.

If it be infeasible to partition the land to allow the widows to receive their respective houses as improvements, then an accounting should be had as to such improvements. In Butler v. Furr, 168 Miss. 884, 891-892, 152 So. 277, 279 (1934) the applicable principles to be followed are stated thus:

If, upon another trial of the case, it should be developed that it is not practical to comply with the rule in the Bennett Case, and that, in order to equalize the shares, a new partition will have to be made whereby an improver will be required to surrender to another a valuable improvement, which, at the time of the partition, enhances the particular lot or tract of land, then an accounting should be had as to such improvement and only in that event.
Further, in our judgment, if the rule in the Bennett Case is followed, and each improver is put into possession of the land he has improved, then there should be no accounting for improvements.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

ROBERTSON, P. J., takes no part.


text:
    INTERNATIONAL PAPER CO. v. Edward MANLEY.
    No. 52625.
    Supreme Court of Mississippi.
    April 8, 1981.
    Lucien C. Gwin, Jr., Handy, Fitzpatrick, Gwin, Blough & Lewis, Natchez, for appellant.
    William R. Ford, Crawley & Ford, Kosciusko, for appellee.
   Appeal from Circuit Court, Pontotoc County; Fred Wicker, Judge.

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

AFFIRMED.


text:
    Mattie B. WHITE v. MISSISSIPPI EMPLOYMENT SECURITY COMM’N and Wayne Manufacturing Co.
    No. 52656.
    Supreme Court of Mississippi.
    April 8, 1981.
    Martha Bergmark, Hattiesburg, for appellant.
    Leo T. Aragon, Jackson, for appellees.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

AFFIRMED.


text:
    Roy H. SMITH v. STATE of Mississippi.
    No. 52666.
    Supreme Court of Mississippi.
    April 8, 1981.
    J. W. Kellum, Sumner, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Tallahatchie County; Andrew C. Baker, Judge.

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

AFFIRMED.


text:
    Kim M. ROBERTSON v. MISS. EMPLOYMENT SECURITY COMM’N. and Ellisville State School.
    No. 52624.
    Supreme Court of Mississippi.
    April 8, 1981.
    Martha Bergmark, Hattiesburg, for appellant.
    Leopoldo T. Aragon, Jackson, for appel-lee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

AFFIRMED.


text:
    Mrs. Dorothy CAGLE and Mrs. Quay Spencer v. Marie Wright MOORE, Executrix of the Last Will and Testament of Minnie Vandevander.
    No. 52635.
    Supreme Court of Mississippi.
    April 8, 1981.
    Nora J. Hall, Roy 0. Parker, Tupelo, for appellants.
    Rickey T. Moore, Gifford, Moore & Bolen, Booneville, for appellee.
   Appeal from Chancery Court, Prentiss County; James E. Bost, Chancellor.

Before PATTERSON, C. J., SMITH, P. J., and WALKER, J.

AFFIRMED.

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


text:
    Catherine Joyce (Brewer) BRINKLEY v. William Donald BREWER.
    No. 52547.
    Supreme Court of Mississippi.
    April 8, 1981.
    Briggs Smith, Smith & Phillips, Bates-ville, for appellant.
   Appeal from Chancery Court, Tate County; L. E. Hannaford, Sr., Chancellor.

Nat G. Troutt, Troutt & Moore, Senato-bia, for appellee.

Before WALKER, BROOM and HAW- ' KINS, JJ.

AFFIRMED AS MODIFIED.

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


author: HAWKINS, Justice,

text:
    John GALLION v. STATE of Mississippi.
    No. 52544.
    Supreme Court of Mississippi.
    April 8, 1981.
    Percy S. Stanfield, Jr., Stanfield, Holder-field & Hall, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Appellant John Gallion appeals from the conviction of murder by the Circuit Court of the First Judicial District of Hinds County in the slaying of one Calvin Gray on February 24, 1980, wherein he was sentenced to life imprisonment. We affirm.

The weight and sufficiency of the evidence to justify the verdict of guilty is not questioned.

The first assignment of error is the court’s excusing for cause a black juror on the ground he was a common gambler. The district attorney requested the court to excuse this juror, who it developed ran a domino parlor and had been convicted once for the offense of gambling. This error, if we conceded error had been made by the circuit judge, was harmless. Neither the state nor the defendant exercised 12 peremptory challenges to which each side was entitled, each side exercising 11. This contention was answered long ago by this Court in Shubert v. State, 66 Miss. 446, 6 So. 238 (1889). In that case a special venire of 30 prospective jurors were drawn, and through inadvertence of the court one of the persons whose name was selected was left off the copy of the jury list given the accused. The defendant’s motion to quash the panel was overruled. At the trial the jury was selected from the remaining 29, and without the accused exhausting the peremptory challenges authorized him by law. The defendant complained on appeal, and this Court made the following response:

“It is a mistake to suppose that the prisoner has a vested right to a particular person of the special venire. The statutes providing for a special venire and giving the prisoner a copy of the indictment and list of the special venire summoned, are designed to secure an impartial jury to try him; and where that is accomplished no ground for complaint exists.”

Appellant next complains the court erred in allowing the state to call three witnesses whose names were not disclosed prior to trial that day. However, the court did call a recess and gave counsel for the defendant an opportunity to interview these three witnesses before they testified. Counsel cites no authority, or shows in any manner how his client was prejudiced by any alleged discovery violation, and we hold no reversible error was committed in this respect.

This Court is constrained to make observation, however, upon what transpired in this matter. Rule 4.06 of the Uniform Criminal Rules provides that the prosecution shall upon request disclose to the defendant or his attorney and without further court order the names and addresses of all witnesses in chief proposed to be offered at trial. The same rule also provides that if the defendant requests discovery he shall disclose to the prosecutor the names and addresses of all witnesses in chief proposed to be offered by the defendant, to be disclosed simultaneously with receipt of the names and addresses of the state’s witnesses. The rule also requires continuing disclosure for after-acquired information. There is, finally, a provision for sanctions against the attorney who wilfully violates the provisions of this rule.

Trial in this cause commenced on Monday morning, May 5, 1980. Apparently, while the court was in the process of selection of the jury, there was an off the record discussion, following which defense counsel objected to the state calling any more witnesses, “.. . because we worked all weekend trying to find the ones that they had already given us and they come up here after the jury has been selected and bring additional witnesses in contemplation of the rules on discovery.”

The court then inquired of the state, and the state responded Robert (Slim) Sanders, had just been located, and the investigators were talking to Ann Turner and Henry Wilson. Also, that one Willie B. Smith had just been located that morning. Defense counsel made no further issue of the matter at that time, did not ask for a recess or time within which to talk to these witnesses, and the proceedings continued upon an unrelated matter.

Two witnesses testified for the state, were cross-examined by the defense, following which another conference was had at the bench between counsel and the court, but the record is silent on what was said in this conference. Again, apparently the state was about to offer Robert Sanders as a witness. The court excused the jury and informed defense counsel it was the court’s understanding Sanders was one of the witnesses the state just discovered and, “I believe you wanted time to interview him before he takes the stand.”

The state then called to the attention of the court the defense had not furnished the state with the name of any witness they intended to call pursuant to the rules. The court then stated a recess would be taken until “you have a chance to interview all the witnesses.”

Defense counsel responded they might not call any witnesses. The state then requested that the defense make a record of it. Defense counsel then stated: “We refuse to give a list to the state.” The district attorney replied: “And we refuse to let him talk to our witnesses.” Whereupon the following colloquy transpired: (Record 56, et seq.)

BY THE COURT; Go ahead and interview them so we can proceed.
BY MR. PETERS: Wait a minute, Your Honor.
BY THE COURT: Yes, sir.
BY MR. PETERS: I am going to direct these witnesses not to talk to this man unless they let us do it. That’s the rule, Your Honor. There is no need for us to go by the rule if they don’t follow the rule.
BY THE COURT: He stated that he didn’t intend to call anyone at the present time. When he calls a witness, you will have a chance to interview him prior to taking the stand, Mr. Peters.
BY MR. PETERS: You don’t have to talk to him.
BY MR. STANFIELD: Your Honor, we ask the Court to direct this witness as well as the others to talk with us and tell us what they know about the case.
BY THE COURT: I don’t believe I have that authority, Mr. Stanfield. All I can do is give you the opportunity to interview him. I am telling the District Attorney not to instruct him not to talk to you though.
BY MR. PETERS: (Talking to witness) I am not instructing you not to talk to him but you don’t have to talk to him if you don’t want to.
BY MR. STANFIELD: Come on in here, man, and let me talk to you.
BY MR. PETERS: You don’t have to talk to him if you don’t want to.
BY MR. STANFIELD: Come on in here, man.
BY MR. PETERS: (Talking to the witness which could not be heard by this court reporter).
BY MR. STANFIELD: Your Honor, the District Attorney has advised him to refuse to talk to me and he’s supposed to be the Court’s witness and not the District Attorney’s witness, Your Honor.
BY THE COURT: That’s right.
BY MR. STANFIELD: And he refuses to talk to me, Your Honor.
BY MR. PETERS: Now, may it please the Court, that’s a lie. I told the man that he did not have to talk to him unless he wanted to and he said that he did not want to talk to him and that he would tell everybody in court what he had to say.
BY THE COURT: What’s your name?
BY THE WITNESS: Robert Sanders and I said whatever I had to say I would say before the Court.
BY THE COURT: Well, this man needs a chance to interview you before you take the stand so just step right in here and talk to him at the present time. It’s going to work that way with you too, Mr. Stanfield, when and if you call your witnesses.
BY MR. STANFIELD: Come on in here, man, and talk to me.
BY MR. PETERS: Your Honor, could we be present during the questioning of this man?
BY THE COURT: Yes, sir.
(Off the record)
BY THE COURT: Are you ready to proceed?
BY MR. STANFIELD: Your Honor, we have not been able to interview the witness. He refuses to talk with us and refuses to talk with us without his lawyer being present and we are not going to talk to him under those circumstances.
BY THE COURT: All right. Do you want to talk to any of the others?
BY MR. STANFIELD: If we can talk to them like we usually talk to witnesses, yes, sir.
BY THE COURT: Well, I don’t know of any other way to proceed, Mr. Stanfield, so I am ready to proceed if you are.
BY MR. STANFIELD: Well, I am not ready to proceed, Your Honor, because I can’t talk to the witnesses but I’ll have to be guided by the Court’s directions.
BY THE COURT: Okay.
BY MR. STANFIELD: We have been denied the right to interview the witnesses who are to testify in this case.
BY THE COURT: I think a correct statement is that you have been denied the right to interview the witnesses outside the presence of the District Attorney.
BY MR. STANFIELD: But, Your Honor, had I known about it, I would have been entitled to interrogate these witnesses at any time.
BY THE COURT: That’s right.
BY MR. PETERS: They have a right to announce who they wanted present and refuse to talk to them also, Your Honor, which this witness has done. He has told me that he wants me present if he talks to him and he has told me that he would tell whatever he had to say in open court, Your Honor.
BY MR. STANFIELD: Is that going to be true with all the other witnesses?
BY MR. PETERS: I don’t know. I haven’t talked to any.
BY MR. STANFIELD: Well, there is no need in taking up the Court’s time. Mr. Davis can step down there and ask them if they are going to talk to us and, if they are not going to talk with us except with their lawyer being present, then we are not going to talk to them.
BY THE COURT: I think you have made your record, Mr. Stanfield. Now, are you ready to proceed?
BY MR. STANFIELD: Subject to the Court’s ruling, yes, sir.
BY THE COURT: Okay. Bring the jury in.

The trial court was correct in informing defense counsel the court had no authority to require any witness to be interviewed privately prior to taking the witness stand. Scott v. State, 359 So.2d 1355 (1958), pp. 1358-1360.

Defense counsel violated Rule 4.06 in failing and in fact refusing to give the names of prospective defense witnesses after requesting the names from the prosecution. The state was under a continuing duty to furnish the names and addresses of prosecution witnesses, which it failed to do . Further, while a witness has a right not to talk in a private interview even though under a subpoena, it was beyond the prerogative of the state’s counsel to interfere with the attempted interview by defense counsel with eyewitnesses, and a clear violation of the same Rule, which provides:

“. .. neither counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information.. .to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel’s investigation of the case.”

Both counsel, especially the state’s, were subject to reprimand and possibly contempt in the presence of the court. As officers of the court, the conduct of both left much to be desired, was offensively discourteous, and we express our disapproval thereof. Each should have sought sanctions by the court upon the other’s failure to abide by the rule; they “took the rule into their own hands.”

Yet, the handling of conduct such as revealed by this record rests, after all, with the trial court in whose presence it all took place. He has full authority to deal effectively with such conduct. No reversible error is shown to have resulted, and we accordingly affirm.

AFFIRMED.

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


author: LEE, Justice,

text:
    John M. STEED v. STATE of Mississippi.
    No. 52507.
    Supreme Court of Mississippi.
    April 8, 1981.

      David E. Holderfield, Percy S. Stanfield, Jr., Stanfield, Holderfield & Hall, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

John M. Steed was convicted in the Circuit Court of Madison County on a charge of murder and was sentenced to life imprisonment in the Mississippi State Penitentiary. He has appealed and assigns six (6) errors in the trial below.

On October 28, 1979, Madison County Deputy Sheriff Merle Squires was called to an area of Ross Barnett Reservoir on Mississippi Highway # 43 where he found a female body lying face up, the upper half being on rocks upon the bank and the lower half in the water. Squires frightened off buzzards, which were around the body, and radioed Madison County Sheriff Billy Noble, who came to the scene with a photographer from the Canton Police Department. The body was clad in blue jeans, a maroon shirt, and high boots. Also, there were found on it a watch, ring and necklace, and it was partially bound with a rope. The body was photographed and removed to a Canton funeral home where it was fingerprinted by a highway patrol investigator. Contemporaneously, the Madison County Sheriff’s Department began an investigation to determine the victim’s identity.

The department received a phone call on October 29,1979, from a young woman who reported her roommate missing, and pursuant thereto, investigators went to 501 Winter Street in Jackson, obtained a description, photograph and purse of the missing woman, Donna McMillan. Latent fingerprints on articles found in the purse were matched by the State Crime Laboratory with the prints of the victim, and she was positively identified as Donna McMillan.

An autopsy revealed strangulation as the cause of death, and abrasions on her neck specifically indicated strangulation by a rope. She had not been raped or assaulted, and it was medically determined that the victim had been dead at least two (2) days upon discovery, but more probably three (3) to four (4) days. The investigators learned from the victim’s roommate that she had recently been seen in the company of appellant with whom she had lived for six (6) years, and by whom she had an infant son, but they were separated at the time. The officers went to appellant’s home, but he was absent. They returned the next day, found him at home, and appellant voluntarily accompanied them to the police station for questioning. He signed a waiver of his Miranda rights and gave a free and voluntary statement to the effect that on October 24, 1979, he had picked up Donna McMillan at the apartment on Winter Street at approximately 12:00 p.m. (Wednesday before the Sunday discovery of her body), that he had an appointment to go to the VA hospital for out-patient treatment of a gunshot wound in his back inflicted approximately a month before, and that they went to the VA hospital where he obtained treatment. They left there and went to the Seago Truck Stop on Gallatin and 1-20 in Jackson where he put her out at a pump on the far end of the gas island. He related that she saw a trucker there whom she knew and she was going to catch a ride with him and go to “North Carolina or some place.”

Sheriff Noble asked appellant whether he had killed his wife, and, according to Sheriff Noble, appellant dropped his head and, after some nervous gestures, said, “No.” Two of the deceased’s friends testified that on two occasions two (2) weeks and one (1) week prior to Donna’s death, appellant stated “She is a dead-,” and told about trouble between them.

Appellant’s mother testified that on Wednesday, October 24, appellant was at home by 5:00 p.m., indicating that he could not have slain Donna. She further stated that she spoke with Donna over the telephone on Thursday, October 25, 1979, around 2:00 a.m. Prior to trial, Mrs. Steed told Deputy Sheriff Squires the following:

“A. I told Mrs. Steed who I was, who I worked for, and I asked her what time did John [Steed] come home on. the day he went to the hospital, which would be the 24th, that I—
Q. And what, if anything, was her response?
A. She told me, she hesitated a little bit on the phone and she says, now if I told you that he come home at 5:00 o’clock in the afternoon, you would hold me to that in court, wouldn’t you?
Q. And what did you tell her?
A. And I said, yes ma’m, I would. And she said, then I’m not going to answer you.”

L — II.

Appellant contends (1) that the court erred in overruling his motion in li-mine to suppress the testimony of State’s witnesses Audrey Williams and Mary Shoemaker relating statements made by appellant two weeks and one week before Donna’s death as remote and (2) the court erred in overruling appellant’s motion in limine to suppress the introduction of a color photograph of the victim on the grounds that it had no probative value and was highly inflammatory. Threats made by an accused, although uncommunicated to the victim, are admissible in evidence to show malice, premeditation and criminal intent. Threats which are so remote as to have no eviden-tiary value are not admissible. Testimony of threats has been ruled admissible from an accused as long as two months before the killing of the deceased. Whether or not a threat is too remote to be admissible is a question addressed to the sound discretion of the trial judge. Parr v. State, 362 So.2d 634 (Miss.1978); Grooms v. State, 357 So.2d 292 (Miss.1978); Sharplin v. State, 330 So.2d 591 (Miss.1976). We are of the opinion that the trial judge did not abuse his discretion in admitting the statements, that they were not remote, and they did have evidentiary value.

The photograph of the victim was taken at the scene where her body was found and was the only one of three such pictures not suppressed by the trial judge. The body was clad in a maroon blouse, easily recognizable, and was identified on the body as the blouse belonging to Donna McMillan. The pictures also had some relevancy as to the identity of the victim, and the length of time she had lain at the place where discovered. We think the picture had some probative value, was not highly inflammatory and that the trial judge did not abuse his discretion in overruling the motion to suppress and admitting the photograph in evidence. Cessna v. State, 381 So.2d 173 (Miss.1980); Dase v. State, 356 So.2d 1179 (Miss.1978); Mallette v. State, 349 So.2d 546 (Miss.1977); Slyter v. State, 246 Miss. 402, 149 So.2d 489 (1963).

III.

The appellant contends (3) that the court erred in permitting the State witnesses, Sheriff Billy Noble and Deputy Sheriff Merle Squires, to testify that when appellant was arrested he confessed his guilt by lowering his head and causing his left eye to jump.

After appellant was given the Miranda warnings he made a voluntary statement to the officers exculpating him from any connection with the homicide. Over appellant’s objection, Sheriff Noble testified that, when he asked appellant whether he killed Donna McMillan, appellant lowered his head, began shaking, tensed his facial muscles, and his left eye began to twitch. When appellant was interrogated, he did not inquire about Donna’s death or her physical condition.

Appellant argues that the testimony of Sheriff Noble violated his right against self-incrimination guaranteed by the Fifth and Fourteenth Amendments, and cites Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We are of the opinion that Doyle is not authority for such position. As stated, after being advised of the Miranda rights, appellant freely and voluntarily talked with the officers rather than choosing to remain silent. His statement was admissible in evidence, as were his appearance and reactions.

IV.

The appellant contends (4) that the court erred in refusing to grant his motion for a mistrial after the district attorney made remarks in his argument about appellant’s failure to answer.

The remarks made by the district attorney and found objectionable by the appellant follow:

“You know, they imply that initially where there is a little smoke there may be some fire, and all this started out fun and games yesterday but it got to about 6:00 o’clock yesterday afternoon and then the heat got on and they wanted to send everybody out, and then when Sheriff Noble got to talking about where the man wouldn’t look him in the eye, and tell him, answer him, that question, then the fun and games went out the window, hoping to have dreamed that.”

Appellant cites Austin v. State, 384 So.2d 600 (Miss.1980) and argues that under Austin the argument was reversible error. The contention is not well founded and is without merit in view of the fact that we have held the testimony of Sheriff Noble under Assignment III to be admissible. The district attorney’s argument followed that evidence.

V.—VI.

The appellant contends (5) that the lower court erred in refusing his request for a peremptory instruction of not guilty and (6) that the verdict of the jury was against the overwhelming weight of the evidence.

In Bullock v. State, 391 So.2d 601 (Miss. 1980), we stated the rule concerning motions for directed verdicts and requests for peremptory instructions in criminal cases as follows:

“In passing upon a requested peremptory instruction, or motion for directed verdict, in a criminal case, all evidence most favorable to the State, together with reasonable inferences, are considered as true and evidence favorable to the appellant is disregarded. If such evidence will support a guilty verdict, the request for peremptory instruction must be denied, as well as the motion for directed verdict. Warn v. State, 349 So.2d 1055 (Miss.1977); Toliver v. State, 337 So.2d 1274 (Miss.1976).” 391 So.2d at 606.

Summarizing the evidence, it showed the following for the State:

(1) The body of the deceased was indeed that of McMillan.

(2) Mrs. McMillan met her death as a result of ligature strangulation.

(3) She had been dead for a period of two to four days before being found on October 29, 1979.

(4) She had been seen in a van with appellant on October 24, 1979, prior to the discovery of her body.

(5) The clothes on the body matched the clothes she was seen wearing when she entered the van containing the appellant.

(6) Mrs. McMillan was extremely afraid of the appellant.

(7) Appellant had a motive to kill the deceased, since she had been seeing other men and was leaving him.

(8) Two witnesses testified that the appellant threatened to kill her on two occasions.

(9) Appellant’s exculpatory story was disputed by a State witness who testified that he did not see appellant or a dark van in the vicinity (Seago Truck Stop) where appellant said they were on October 24, 1979.

The trial judge thoroughly instructed the jury with reference to circumstantial evidence. The credibility of the witnesses and the weight and worth of their testimony, including that of appellant, were for the determination of the jury. The guilt issue was properly submitted to the jury, and we are of the opinion that the jury verdict is supported by the evidence. There being no reversible errors in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

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


author: BROOM, Justice,

text:
    Phillip G. YATES v. STATE of Mississippi.
    No. 52556.
    Supreme Court of Mississippi.
    April 8, 1981.
    Robert N. Brooks, Carthage, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   BROOM, Justice,

FOR THE COURT:

Cattle theft is the offense for which the defendant was convicted in the Circuit Court of Leake County. As an habitual offender, he was sentenced to life imprisonment. On his appeal, the defendant argues that the lower court erroneously (1) denied him a special venire and twelve peremptory jury challenges, (2) allowed defendant’s confession into evidence, and (3) sentenced the defendant as an habitual offender. We affirm, but remand for appropriate sentence.

In September 1979 after several cows were stolen from Therril Atkinson, an investigation revealed that two of the cattle had been sold to one Buster Seely in Dallas County, Alabama. Seely purchased the two cows (which Atkinson identified) from a stockyard where the defendant sold the cattle on September 26, 1979. Having the information that the defendant sold the cows to the stockyard, investigators went to his home and observed several vehicles including a blue pickup truck in his yard. A check concerning the vehicles revealed that the blue pickup was a stolen vehicle. As the defendant fled into the woods, the investigators captured him and carried him to the sheriff’s office for questioning. After the defendant was read his Miranda warnings and signed a waiver of rights form, he confessed that he and one Larry Spooner stole the cows. Other facts will be stated where appropriate in this opinion.

WAS THE DEFENDANT ERRONEOUSLY DENIED A SPECIAL VE-NIRE AND TWELVE PEREMPTORY CHALLENGES? In his brief, the defendant cites Mississippi Code Annotated § 1-3-4 (Supp.1980). The pertinent part of this section reads:

The terms “capital case,” “capital cases,” “capital offense,” “capital offenses,” and “capital crime” when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary.

Mississippi Code Annotated § 13-5-77 (1972) on special venire provides that a defendant “charged with a capital crime ...” is entitled to a special venire. Pointing out that he was indicted “as an habitual criminal” under Mississippi Code Annotated § 99-19-83 (Supp.1980), the defendant states:

It is obvious that any indictment under Section 99-19-83 is a criminal case punishable by imprisonment for life. Therefore, Appellant was indicted in a cause that would qualify as a “capital case” and as a “capital crime.”

The indictment charges the defendant with the principal offense of cattle theft which is not a category of offenses for which one is entitled to a special venire under § 13-5-77, supra, or to twelve peremptory challenges under Mississippi Code Annotated § 99-17-3 (1972). The fact that the indictment advised the defendant that he was subject to a life imprisonment punishment as an habitual criminal under § 99-19-83, supra, has nothing to do with a special venire or twelve peremptory challenges. As we stated in Wilson v. State, 395 So.2d 957, § 99-19-83 does not make it a crime for one to be a multiple offender even though it affects severity of punishment.

WAS THE CONFESSION PROPERLY ADMITTED INTO EVIDENCE? Defendant’s argument that the confession is inadmissible rests largely upon his contention that the sheriff told him that he would arrest his wife if he didn’t cooperate which would cause their two-month old breast fed baby to be taken away from her. At a hearing on this question outside the presence of the jury, the sheriff specifically denied that he threatened to arrest defendant’s wife. It was the sheriff’s version that after the defendant’s rights had been read to him, the defendant asked if his wife would be indicted. The sheriff testified that he told him that he didn’t have anything with which to charge the defendant’s wife. The sheriff’s testimony was corroborated by each of the other officers who were present, and the trial court ruled that the confession was admissible into the evidence. In doing so the lower court did not commit error.

WAS THE DEFENDANT ERRONEOUSLY SENTENCED AS AN HABITUAL OFFENDER? The indictment charged the defendant as “coming under Section 99-19-83, Mississippi Code of 1972.” According to the record which is not contradicted here by the state, the defendant at the time of his indictment in the present cause had not served terms of one year or more for his prior convictions dated March 14 and April 4, 1980, (as set forth in the indictment) and subsequent to the date of the present offense before the court: September 1979.

In the indictment presently before us, the state in setting forth the defendant’s prior convictions charged that he had been convicted on November 13, 1972, of “kidnap, murder and armed robbery” for which he served sentences from November 13, 1972, until October 20, 1977. During the trial of the present case, it was determined by the trial court that the “kidnap, murder and armed robbery” (1972 convictions) all arose out of the same incident and therefore were to be considered as only “one of the necessary two previous convictions.” Two other convictions were charged in the indictment as having occurred March 14,1980, in Simpson County and April 4, 1980, in Union County. According to the evidence, and as found by the presiding judge, the prior Simpson County crime occurred in December 1979 and sentence was imposed on March 14, 1980. The prior Union County crime occurred January 1980 and sentence therefor was on April 4, 1980.

Section 99-19-83, supra, is correctly quoted by the defendant to mean that he “. . . shall have been sentenced to and served separate terms of one (1) year or more.... ” (Emphasis added). Inasmuch as the George County convictions arose out of the same incident, the defendant argues that

the State was required to prove that the Appellant had been sentenced to and served at least a one year term in addition to the George County sentences. Both the Simpson County and the Union County sentences were made to run concurrently with other sentences (presumably George County).

He correctly notes that it would have been impossible to begin a sentence on March 14, 1980, or on April 4, 1980, and to “serve at least one year prior to the principal trial which was conducted on May 5th and 6th, 1980.”

In considering this argument, the state in its brief states:

Because we have decided not to dispute the appellant’s contention on this point, we turn to the scope of a possible remand. We intend to show that, if the case is remanded, it should be remanded only for the purpose of appropriate sentencing.

We deem it appropriate here to point out the distinguishing factors of the present case from Millwood v. State, 190 Miss. 750, 1 So.2d 582 (1941). In Millwood, it was suggested that the case be remanded for appropriate sentencing, but this Court declined to make such a remand. In Mill-wood, the prosecutions constituting the principal convictions were for repeated offenses of possession of intoxicating liquors in which cases the prior convictions were elements of the offense to be determined by the jury. In the intoxicating liquor cases, the jurors hear the evidence relating to prior convictions which is in sharp contrast to the present case and similar cases dealing with enhanced punishment under § 99-19-83, supra, and Mississippi Code Annotated § 99-19-81 (1972). Under these two code sections, evidence of previous offenses is not given to the jury, and the indictment is not presented to the jury. Under Mississippi Uniform Criminal Rules of Circuit Court Practice 6.04 the trial judge alone considers the prior convictions and metes out the sentence. Wilson v. State, supra. Under § 99-19-83, the defendant must have been sentenced to and “served separate terms.” (Emphasis added). The requirement that he previously served separate terms of one year or more is conspicuously absent from § 99-19-81, supra, which was construed in Jordan v. State, 383 So.2d 495 (Miss.1980) wherein we held that in meting out sentence under § 99-19-81, the trial judge may consider convictions occurring after the date of the principal offense at issue.

In the case at issue sentencing was under § 99-19-83 and cannot be upheld because the record clearly reveals that the defendant had not “served separate” terms as required by the statute. We conclude on the state of this record that the cause should be remanded for proper sentence under § 99-19-81, supra, not inconsistent with this opinion. Bell v. State, 355 So.2d 1106 (Miss.1978).

CONVICTION AFFIRMED; REVERSED AS TO SENTENCE AND REMANDED FOR PROPER SENTENCING.

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


author: SUGG, Justice,

text:
    Brent BRACY v. STATE of Mississippi.
    No. 52312.
    Supreme Court of Mississippi.
    April 8, 1981.

      Russel D. Moore, III, Binder & Moore, Firnist J. Alexander, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ
   SUGG, Justice,

for the Court:

Defendant was convicted in the Circuit Court of the First Judicial District of Hinds County for the sale of phencyclidine (PCP) and sentenced to serve a term of twenty (20) years and fined $10,000. Defendant assigns as error:

1. The court erred in refusing to permit counsel to examine the Narcotics Bureau report of Agent Steve Mallory.
2. The court abused its discretion in sentencing the defendant, aged 18 years, to 20 years and a fine of $10,000.

I

Steve Mallory, agent of the Mississippi Bureau of Narcotics, testified he purchased 5,000 phencyclidine (PCP) tablets from the defendant, William Allen Stewart and Michael Jones for the sum of $3,200, and that he made a written report pertaining to the sale. At trial defendant moved for a production of Mallory’s written report to be used by his attorney in cross-examining Mallory. The trial court overruled the motion to produce the entire report but directed the state to furnish that part of the report which contained statements made by the defendant.

On appeal defendant argues that he was entitled to the entire report to be used in cross-examining the witness Mallory. He relies on Shell Oil Co. v. Pou, 204 So.2d 155 (Miss.1967) and Mississippi Highway Commission v. W. E. Howard, Jr., 253 Miss. 556, 176 So.2d 294 (1965). In Mississippi Highway Commission the trial court refus-to make notes, which a witness had referred to during his direct examination, available to the opposite party for cross-examination of the witness. This Court held this was error and stated: ed

This ruling of the court was in error. In 58 Am.Jur. Witnesses § 601 (1948), it is stated:
The opposing party or counsel has the right, on proper demand, to inspect and use for purposes of cross-examination any paper or memorandum which is used by a witness while on the stand for the purpose of refreshing his memory upon the matters as to which he is testifying, and which in fact does tend to refresh his memory. The opposing party is accorded this right in order that he may ascertain whether the paper or memorandum used has any legitimate tendency to bring the fact in controversy to the mind of the witness, and in order that he may be in a position to cross-examine as to the testimony given and thereby test the candor and integrity of the witness. .. (253 Miss, at 562, 563, 176 So.2d at 296)

The Court also held that, ordinarily refusal to require a witness to submit notes used on direct examination would be reversible error, but such failure was harmless error under Mississippi Supreme Court Rule 11.

Mississippi Highway Commission and Shell Oil Co. have no application to this case because Mallory did not use his written report to refresh his memory while he was testifying on direct examination, therefore, this argument of defendant has no merit.

Defendant also contends that if the report contains any exculpatory evidence, the refusal to permit counsel for defendant to examine it was error. This contention requires us to examine Mallory’s report to ascertain if the failure of the Court to require the state to furnish the entire report violates due process.in accordance with the rule enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and amplified in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). In Brady the Court stated:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
The principle of Mooney v. Holohan, [294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals. [Brady v. Maryland] 226 Md., [422] at 427, [174 A.2d 167.] (373 U.S. at 87, 83 S.Ct. at 1196, 10 L.Ed.2d at 218, 219).

In Agurs, the Court stated:

We are not considering the scope of discovery authorized by the Federal Rules of Criminal Procedure, or the wisdom of amending those Rules to enlarge the defendant’s discovery rights. We are dealing with the defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution. Our construction of that Clause will apply equally to the comparable Clause in the Fourteenth Amendment applicable to trials in state courts.
The problem arises in two principal contests. First, in advance of trial, and perhaps during the course of a trial as well, the prosecutor must decide what, if anything, he should voluntarily submit to defense counsel.
Second, after trial a judge may be required to decide whether a nondisclosure deprived the defendant of his right to due process. Logically the same standard must apply at both times. For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose.
Nevertheless, there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge. Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicated accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure. But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.
Whether or not procedural rules authorizing such broad discovery might be desirable, the Constitution surely does not demand that much. While expressing the opinion that representatives of the State may not “suppress substantial material evidence,” former Chief Justice Traynor of the California Supreme Court has pointed out that “they are under no duty to report sua sponte to the defendant all that they learn about the case and about their witnesses.” In re Imbler, 60 Cal.2d 554, 569, [35 Cal.Rptr. 293,] 387 P.2d 6,14 (1963). And this Court recently noted that there is “no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” Moore v. Illinois, 408 U.S. 786, 795, [92 S.Ct. 2562, 2568,] 38 L.Ed.2d 706. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.
Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Cf. Gig-Iio v. United States, 405 U.S. 150,154, [92 S.Ct. 763, 766,] 31 L.Ed.2d 104. Conversely, if evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed he was suppressing a fact that would be vital to the defense. If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.
On the other hand, since we have rejected the suggestion that the prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error. It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set. aside the verdict and judgment unless his “conviction is sure that the error did not influence the jury, or had but very slight effect.” Kotteakos v. United States, 328 U.S. 750, 764, [66 S.Ct. 1239, 1247,] 90 L.Ed. 1557. Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. (427 U.S. at 107-113, 96 S.Ct. at 2399-2402, 49 L.Ed.2d at 352-354)

When defendant’s attorney moved for a production of Mallory’s written report, the trial judge reminded him that the proper time according to the Rules was not during the trial but before the trial. It was then developed that the prosecutor at least a month before trial read defendant’s statements contained in Mallory’s report to defendant’s attorney. Defense counsel requested the court to examine the report in its entirety to which the court responded that it had examined the report but would also examine it in more detail.

The court then ordered that the statements of the defendant contained in the report be excised and furnished to defendant’s counsel. The court then ordered the entire report sealed for examination by this Court on appeal and also included the portion furnished defendant’s counsel. We have examined the entire report but find no exculpatory matter contained in the report.

The report consisted of 10 pages written in narrative form preceded by a cover sheet entitled “Prosecution Charge Sheet” and was followed by a laboratory evidence receipt. The portion of the report not furnished defendant contained a statement about an earlier sale of PCP by defendant and others, a four line synopsis of the sale for which defendant was tried, an account of the arrangements for the sale, statements pertaining to surveillance units which were set up to observe the sale, a conversation between Mallory and Jones, conversations between Mallory and Stewart, Mallory’s discussion about future transactions, a description of Mallory’s departure from the apartment and his observation of the surveillance units, a description of the delivery by Mallory of the 5,000 tablets to the Mississippi Crime Lab, Mallory’s information about defendant and his companions being stopped by a marked car of the Jackson Police Department, a description of Michael Jones and William Stewart, a description of the evidence and of the vehicle that Stewart and Bracy occupied when they departed. The trial court dictated into the record the description of defendant contained in the report.

We are at a loss to understand the reluctance of the state to reveal the information contained in the report because there is nothing in the report “that would subject any person to a substantial risk of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure.” Rule 4.06. Neither did the report contain any secret affecting national security. Accordingly, the report will not remain sealed.

We hold the trial court did not err in refusing to make the entire report available to defendant’s counsel because there is nothing in the report that would have helped the defense or might have affected the outcome of the trial. Also, there was no material variance between Mallory’s testimony and the report. It is therefore not necessary to determine whether withholding a part of the report was harmless error under the standard set forth in Agurs.

II

In his second assignment of error defendant contends that the trial court abused its discretion by imposing a sentence of twenty years and a fine of $10,000 on the defendant. It has long been the rule in this state that an imposition of a sentence in a criminal proceeding is within the sole discretion of the trial judge and this Court will not set it aside if the sentence is within prescribed statutory limits. Yazzie v. State, 366 So.2d 240 (Miss.1979); Ellis v. State, 326 So.2d 466 (Miss.1976); Ainsworth v. State, 304 So.2d 656 (Miss.1974).

Ill

When this case was submitted, the Court requested additional briefs on the question of jurisdiction because we noted that defendant had filed a motion for a new trial which had not been disposed of before he perfected his appeal.

We have concluded that this Court has jurisdiction under the authority of Polk v. State, 247 Miss. 734, 156 So.2d 592 (1963) and Boydston v. State, 144 Miss. 104, 109 So. 727 (1926). In these cases we held that, when a defendant takes an appeal before his motion for a new trial is passed on by the trial court, taking the appeal constitutes an abandonment of his motion for a new trial.

This is not contrary to our holding in a number of cases that a judgment of the trial court is not final until a motion for a new trial is overruled. These cases involved the time for taking an appeal and did not involve a waiver by the party making the motion for a new trial. Gulf, Mobile and Ohio Railroad Co. v. Forbes, 228 Miss. 134, 87 So.2d 488 (1956); Davidson v. Hunsicker, 224 Miss. 203, 79 So.2d 839 (1935).

Neither is our holding contrary to the rule announced in Woods v. Lee, 390 So.2d 1010 (Miss.1980). In that case appellant filed a motion for a judgment notwithstanding the verdict of the jury, or in the alternative, for a new trial. The trial judge took the motion under advisement and did not rule on it within six months. Appellant appealed under the provisions of section 11-1-17 Mississippi Code Annotated (Supp. 1979) but we held the statute did not authorize appeals in cases where a judge took a motion for a new trial under advisement and did not render an opinion in six months. We held appellant’s remedy was by mandamus to require the judge to rule on the motion.

In that case appellant did not abandon his motion for a new trial but appealed from the failure of the judge to rule on the motion within six months as an adverse ruling. We dismissed the appeal as being an interlocutory appeal and remanded the case for a ruling on the motion. No final order had been entered in that case. In the case now under consideration, a final order was entered and thus distinguishable from Woods.

AFFIRMED.

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

ON MOTION TO DISMISS APPEAL

The state filed a motion to dismiss the appeal on the ground that the appeal was not taken within forty-five days after final judgment as required by section 11-51-5 Mississippi Code Annotated (1972).

We held in Nabors v. State, 288 So.2d 472 (Miss.1974) that the limitations on the time to take an appeal to the Supreme Court does not begin to run with respect to a minor until his disability of minority has been removed. Appellant is a minor, and the appeal was taken before his disability of minority had been removed. We therefore overrule the motion to dismiss the appeal.

MOTION TO DISMISS APPEAL OVERRULED.

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

      . Section 4.06 Uniform Criminal Rules of Circuit Court Practice.