author: ROY NOBLE LEE, Justice, for the Court:

text:
    Jerry Lynn YOUNG v. STATE of Mississippi.
    No. 53,727.
    Supreme Court of Mississippi.
    Jan. 5, 1983.
    Rehearing Denied Feb. 9, 1983.

      David 0. Butts and Michael Thorne, Tu-pelo, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice, for the Court:

Jerry Lynn Young was indicted, tried and convicted in the Circuit Court of Lee County, Mississippi, for armed robbery, Honorable Neal Biggers, Jr., presiding, and was sentenced to twenty (20) years with the Mississippi Department of Corrections. He has appealed to this Court and assigns thirteen (13) errors in the trial below.

I.

Was the verdict of the jury contrary to the over-whelming weight of the evidence?

According to the evidence for the State, two (2) fully-masked individuals entered the rear door of the Union National Life and Fire Insurance (Union National) office in Tupelo, Mississippi, on Friday, February 15, 1980, after opening the door with a key. E.R. Easterling and Patricia Thrasher, employees of the insurance company, were at work inside. Easterling looked up from his desk and saw a masked figure at the rear entrance holding a shotgun. He was ordered to “get on the floor” and complied with that order. The robber wore a mask, gloves, and his entire body was covered, but Easterling estimated his height to be 5'7" to 5'8" and stocky build. He could not identify the person. The robber walked over to him and took his wallet which was clipped to his belt loop. As he lay on the floor, Easterling was unable to see any other person involved. Mrs. Thrasher was in an adjoining room, where she was engaged in receiving cash premium checks collected by insurance agents during the week. She heard someone coming in, thought an agent was returning from lunch, and was surprised by a masked figure wearing dark glasses and gloves, who told her to be quiet. She saw the second person with the shotgun and screamed. Mrs. Thrasher did not see any other weapons, and described the first individual seen by her as tall and slim. She could not see the robber’s skin, but thought his voice was that of a black person. After about five (5) minutes, Easterling heard Mrs. Thrasher call and ask, if the robbers were gone, and he got up and attempted to call the police. The robbers had ripped out the telephone lines and Easterling went out the back to a business across the alley and called the police. On returning, he noticed a shiny new key still in the back door lock. That door was always kept locked, and all the agents had keys to it.

The police began an investigation of the robbery, but no arrests were made. On March 17, 1980, they arrested James Troy Harrison on another robbery charge and he confessed to the robbery of the Union National office. On March 26,1980, he gave a statement implicating the appellant in the Union National robbery.

At trial, the facts stated above were testified to by the witnesses. James Troy Harrison and Jimmy Dorman also testified for the State. Harrison, age 33 years, stated he had known appellant approximately fifteen (15) months, and that they worked together in appellant’s cleaning and painting business. On the day of the robbery, appellant picked up Harrison around 7:00 or 8:00 a.m.; they talked about' robbing the insurance office; appellant told him that there would be a lot of money in the office on Fridays; and that he had a key to get in, together with a drawing of the layout of the building. About a week earlier, Harrison was with appellant and saw one Jimmy Dorman give him a key to the rear door of the building.

Harrison further testified that on the morning of the robbery, he and appellant drove to the home of a Garrett couple, took their truck, and returned to Tupelo where the truck was left at a mall. Then they went to appellant’s home, waited there until around 11:30 a.m., and then returned to the truck, using it to drive to the insurance office. Harrison carried a sawed-off shotgun and Young had a chrome .32-caliber pistol. Harrison got the key from appellant, opened the rear door of the office, and they entered together. Harrison ordered the employees to lie down, and admitted taking Easterling’s billfold. They obtained approximately twenty-eight hundred fifty dollars ($2,850.00) from the insurance company, pulled the wires loose from the telephones, and drove back to the mall where they switched vehicles and returned to appellant’s home. Appellant gave Harrison six hundred dollars ($600.00) of the money.

Jimmy Mac Dorman, age thirty-two (32) years, testified for the State that he was formerly employed by the insurance company and had worked there approximately two and one-half (2%) months. He had known appellant for two and one-half (2lh) years, and met Harrison through appellant. According to him, appellant had seen him with a large sum of money which he had collected from insurance customers and appellant asked him about the collections and agents turning in money on Fridays. Dor-man said that appellant told him “I don’t want you to do anything, all I want is a key.” Dorman gave appellant and Harrison a key to the rear door. On the day of the robbery, Dorman did his usual work, went to lunch, and returned to the office after the robbery was over. That night, he went to appellant’s house and appellant gave him six hundred dollars ($600.00).

Appellant’s defense was an alibi testified to by himself and his wife. He cross-examined Harrison and Dorman pro se and attempted to discredit their testimony by inconsistencies and contradictions. Appellant contended that Harrison and Dorman were not telling the truth and that he never went to the insurance office nor did he have anything to do with the crime.

Only slight corroboration of an accomplice’s testimony is required to sustain a conviction. Feranda v. State, 267 So.2d 305 (Miss.1972). The testimony of Harrison and Dorman was corroborated to some extent by Easterling and Patricia Thrasher. The credibility and reasonableness of the testimony of Harrison and Dorman was for the determination of the jury. Cochran v. State, 278 So.2d 451 (Miss.1973). It is within the province of the jury to accept parts of the testimony and to reject parts of the testimony of any witness, and the jury may give consideration to all inferences flowing from the testimony. Grooms v. State, 357 So.2d 292 (Miss.1978).

We are of the opinion that, applying the same rule here as in a request for a peremptory instruction of not guilty, considering all the evidence in behalf of the State as true, together with reasonable inferences flowing therefrom, and rejecting the evidence of the defendant in conflict therewith, the evidence for the State is sufficient to sustain the verdict of guilty, and it is not contrary to the overwhelming weight of the evidence. Warn v. State, 349 So.2d 1055 (Miss.1977).

II.

Did the lower court err in declining to dismiss the indictment against appellant?

The appellant contends that he was not sufficiently notified that he would be tried on the indictment here since he was indicted May 26, 1980, arraigned May 27, 1980, and the case was not set at the next August 1980 Term or the next November 1980 Term. The case was set for the February 1981 Term of court, but appellant testified that he did not know the State was serious about trying him. The record does not indicate the reason why the case was not tried during the August and November 1980 Terms. The appellant also contends that he was not afforded a speedy trial which resulted in prejudice to him, in that a witness was not available. However, appellant obtained a continuance from the May 1980 Term to the August 1980 Term and the number of days delay from the indictment to trial, considering that continuance, amounted to one hundred eighty-three (183) days, which is considerably less than the two hundred seventy (270) day limitation imposed by Mississippi Code Annotated § 99-17-1 (1972). See State v. Davis, 382 So.2d 1095 (Miss.1980).

We are of the opinion that there is no merit in this assignment.

III.

Did the lower court err in permitting the prosecution to impeach appellant with a recent prior conviction alleged by appellant to have been fraudulently obtained?

The appellant testified in his own behalf and the district attorney asked him about an armed robbery conviction which occurred on December 17, 1980, in Lee County, Mississippi, in Cause # 18,302. The appellant admitted such conviction.

He contends that requiring him to testify about the conviction constitutes reversible error for the reason that such conviction was obtained by fraudulent actions of the State in coercing one of its witnesses to testify falsely against him; that the State willfully concealed material evidence; that the State allowed its witness to testify falsely about material facts without correcting them; that one of the officers suborned perjury and caused a State’s witness to testify falsely; and that four (4) State’s witnesses perjured themselves at the trial.

The robbery conviction in question was on appeal to the Mississippi Supreme Court at the time the case sub judice was tried, and appellant indicated that he expected the judgment in that case to be reversed either by this Court on appeal or by some subsequent post-conviction action.

This Court had the precise question before it and answered the question adversely to appellant’s contention in Milstid v. State, 347 So.2d 1319 (Miss.1977), quoting from Nicholson v. State, 254 So.2d 881 (Miss.1971), as follows:

“We find no merit in the appellant’s assignment relative to allowing the district attorney to cross examine him in regard to his recent conviction of the crime of manslaughter.... A majority of the jurisdictions hold a defendant may be impeached by the use of a previous conviction which is on appeal. The basis for so holding is that unless and until the judgment of the trial court is reversed, the defendant stands convicted, is no longer presumed to be innocent of the crime for which he was convicted, and may be impeached by that conviction. Of course, after the conviction has been reversed it cannot be used for impeachment purposes until the defendant is again convicted. When a jury in circuit court returns a verdict of guilty, it is a conviction of the crime charged, and unless and until it is reversed by this Court, the conviction stands, and may be used for impeachment purposes. Bucklew v. State, 192 So.2d 275 (Miss.1966).” (254 So.2d at 883-883). [347 So.2d at 1319-30].

IV.

Did the lower court commit error by failing to specially swear the jury prior to the introduction of evidence in the case?

Appellant contends that the jury should have been sworn specially to try the issues at the outset of the trial, that the record does not so reflect, and that the court committed reversible error.

Although the beginning of the record does not indicate whether or not the jury was specially sworn, the first part of the judgment does so reflect. The pertinent part of the order follows:

CAME a Jury of twelve good [and] lawful men and women and two alternate Jurors, composed of the Special Venire of Jurors drawn to try this cause and the regular panel of Jurors for the week, who after being duly empanelled and especially sworn to try this cause, ...

In Bell v. State, 360 So.2d 1206 (Miss.1978), the record did not show that the jury had been specially sworn, as provided by Mississippi Code Annotated § 13-5-73 (1972), which the Court noticed without assignment. We declined to reverse on that ground, stating: “[T]he presumption is that the trial judge properly performed his duties and that this rebuttable presumption has not been overcome.” 360 So.2d at 1215.

V.

Did the lower court err in denying appellant the right to personally cross-examine a witness unless he waived counsel?

VI.

Was the right to counsel competently waived by appellant?

As mentioned, the witness Dorman testified on behalf of the State. Prior to that testimony, the appellant was under the impression that Dorman would plead his Fifth Amendment rights and refuse to testify. When Dorman testified on direct, appellant desired to cross-examine the witness pro se and indicated to the judge that he considered himself more competent to cross-examine Dorman than his counsel. The trial judge ruled that, as long as appellant had counsel, such counsel must conduct the examination of the witnesses and that an accused’s right to be heard in a criminal prosecution as provided by Article 3, Section 26, Miss.Const.1890, permitted him to argue his case to the jury along with counsel and did not impose a restriction upon the court in the procedural part of trial. Appellant’s position was that he wanted hybrid representation in the actual trial of the case itself, which included examination of the witnesses.

21A Am.Jur.2d Criminal Law § 767 (1981) discusses hybrid representation:

A defendant in criminal proceedings is not entitled as a matter of right to be heard by himself and also by counsel and an application or request by an accused to act as co-counsel may be denied in the discretion of the trial court, at least in the absence of a showing or indication of special need therefor. Nor is an accused entitled to have the services of an attorney for purely advisory purposes.
Under the general rule a defendant who is represented by counsel has no constitutional right to act as co-counsel and make his own summation. And an accused, who has a court-appointed counsel, does not have the right to act as cocoun-sel at a sentencing hearing.

23 C.J.S. Criminal Law § 979 (1961) provides the following:

Right to appear in person and by counsel Ordinarily accused must either conduct his own defense or be represented by counsel and cannot combine both; accused has no right to be heard both in person and by attorney; where he is conducting his own defense, he has no right to have an attorney speak for him and he is not entitled to speak for himself where he is represented by counsel. However, the trial court may, in its discretion, permit an accused represented by counsel to participate in the conduct of the case, or permit an accused appearing in propria persona to employ an attorney to sit by and advise him during the presentation of his case, or may even appoint an attorney, with the attorney’s consent, to render advisory services to an indigent accused wishing to represent himself.
Under some constitutional provisions accused is entitled to be heard by himself, or counsel, or both. Under such a constitutional provision the right of accused to speak for himself when he is represented by counsel is subject to restriction by the trial court in the exercise of its power to prescribe the manner in which the business of the court is conducted.

The Florida court in Thompson v. State, 194 So.2d 649 (Fla.1967), held that, under the constitutional provision entitling an accused to be heard by himself, or counsel, or both, the right of the defendant to speak for himself when represented by counsel is subject to restriction by the trial court in the exercise of its power to prescribe the manner in which the trial will proceed and cited the C.J.S. section, supra.

Appellant also contends that he did not enter a competent waiver of counsel when he decided to cross-examine Dorman. The judge was extremely patient with appellant and his attorney and gave them in excess of an hour to determine what appellant preferred with reference to the waiver of counsel. Appellant delayed and vacillated and the record indicates that he was toying with the court. He was evasive and apparently wanted to act as counsel and have counsel, but when the trial judge pressed him for a decision, appellant expressly told the court that he wanted his counsel to withdraw.

In Matthews v. State, 394 So.2d 304 (Miss.1981), a situation similar to the one here arose, and we said:

An accused could place the trial judge in a difficult situation by insisting on a pro se trial, and, upon conviction, claim that he/she did not have the benefit of counsel and did not knowingly waive counsel. Again, if the court refused to permit an accused to represent himself/herself, and required him/her to have counsel present the case, the accused could contend that he was denied his/her constitutional right in not being permitted to present his/her defense pro se. [394 So.2d at 311].

In Evans v. State, 273 So.2d 495 (Miss.1973), citing United States v. McMann, 386 F.2d 611 (2d Cir.1967), cert. den. 390 U.S. 958, 88 S.Ct. 1049, 19 L.Ed.2d 1153 (1968), the Court said:

“[W]e have recognized a right of a defendant to proceed without counsel and to refuse the representation of assigned counsel.... [H]e may not use this right to play a ‘cat and mouse’ game with the court, ... or by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of counsel.” 273 So.2d at 499.

We have carefully read the record pertaining to these assignments of error. The appellant is knowledgeable in trial procedure and technique and he developed everything favorable to his defense from the time he began to act pro se. Further, the record indicates that Mr. David O. Butts, appellant’s attorney, was present and available for advice and consultation to the appellant. In fact, he ably represented the appellant during the instruction phase of the trial, and he argued the case to the jury. He prepared the appeal and, even now, represents the appellant.

We conclude that there is no merit in Assignments Y and VI.

VII.

Did the lower court err in permitting the reading of a letter which bolstered the testimony of Troy Harrison and Jimmy Dorman?

During the cross-examination of Harrison, the State offered to introduce a statement indicating that no witness had been promised leniency in consideration for his testifying. The defense objected and the offer was denied. The witness Dorman testified on cross-examination, that no offers of leniency had been made to him. During the redirect examination of Dorman, the written statement was read and again offered in evidence. No objection was made and the court admitted it in evidence. Thereafter, appellant objected on the ground that the statement was self-serving, and the court overruled the objection. The statement consisted of the following letter from the district attorney to the defense attorney:

Gentlemen: Please be advised per your request that the State of Mississippi has not made any promises or agreements with one, Troy Harrison, Shirley Harrison or Jimmy Mac Dorman or their respective attorneys in exchange for their testimony against the defendant, Jerry Lynn Young. They have been advised that the State would advise the Court of their cooperation so that the Court may consider this factor in disposition of the charges against them.

The appellant now contends the letter was hearsay and was an attempt to bolster Dorman’s testimony to a previous out-of-court statement. The State replies by arguing that the point was not properly objected to until after the statement was read and marked as an exhibit, and that the objection was not timely and the question was not preserved. Buford v. State, 372 So.2d 254 (Miss.1979). Where hearsay evidence is not properly objected to it may be considered by the jury for whatever probative value the jury may assign to it. Sanders v. State, 260 So.2d 466 (Miss.1972); Pepper v. State, 200 Miss. 891, 27 So.2d 842 (1946).

We also note that in answering one of appellant’s questions, Dorman referred to the letter without objection from appellant. We are of the opinion that the point was not properly preserved and does not constitute reversible error.

VIII.

Did the lower court err in premitting attorney Jimmy Shelton and attorney John Fox to refuse to answer certain questions by claiming the attorney-client privilege?

One part of appellant’s defense went to the proposition that the testimony of Harrison and Dorman resulted from agreements to grant them leniency in return for their testimony. Appellant called their attorneys as witnesses and both attorneys declined to comment on discussion between them and their clients on the ground of the attorney-client privilege. The appellant argues that the court should have instructed them to answer regardless of the privilege.

The record reflects that the privilege was claimed only when the witnesses were questioned about conversations with their clients. Discussions between the attorneys and the prosecution were not claimed as matters of privilege and both Shelton and Fox answered that they had not made any deals.

The appellant further contends that the court should have permitted him to cross-examine Attorney Fox. The court declined to permit the cross-examination on the ground that appellant called Fox to testify and appellant would not be allowed to cross-examine his own witness. In Denton v. State, 348 So.2d 1031, 1033 (Miss.1977), the Court stated the rule as follows:

In the case of Hall v. State, 250 Miss. 253, 264, 165 So.2d 345, 350 (1964), we pointed out that “Witnesses may be cross-examined or impeached by the party calling them when they prove to be hostile. (Citing cases) ... But” we said, “a proper foundation must be laid in order to impeach a witness. The party must first show that the evidence as given, has taken him by surprise and that the witness is hostile. The witness may then be asked if he has made contradictory statements out of court, the times, places and circumstances of the statements being described to him in detail. Underhill’s Criminal Evidence, Vol. 1, Fifth Edition, p. 547.” (197 So.2d at 239-240).

There is no evidence indicating surprise on the part of appellant, nor was there any evidence of hostility toward appellant on his part, and the lower court committed no error.

IX.

Did the lower court err in referring to Troy Harrison and Jimmy Dorman as accomplices in Instruction D-19A, which follows:

Troy Harrison and Jimmy Dorman are accomplices in this case and the testimony of an accomplice is to be considered and weighed with great care and caution. You may give it such weight and credit as you deem it is entitled.

Appellant claims that the instruction peremptorily told the jury that the witnesses were accomplices of appellant when part of the appellant’s defense was that he had nothing to do with the crime and that he was not a participant in it.

The appellant did not object to the instruction when requested and given, and no objection was made until after closing argument. Therefore, the point was not timely preserved.

The instruction refers to Harrison and Dorman as accomplices and, in fact, they were accomplices between themselves. The exact instruction, though not argued in the cases following, was specifically approved in Robinson v. State, 219 So.2d 916 (Miss.1969) and Graham v. State, 219 So.2d 920 (Miss.1969).

X.

Did the lower court err in refusing Instruction D-16?

XI.

Did the lower court err in granting Instruction S-2?

The instructions follow:

Instruction D-16
The Court instructs the jury that if you believe that Troy Harrison and Jimmy Dorman, or both, were persuaded to testify by any promise or leniency or reward or if you believe that their testimony occurred as a result of an understanding between them and the State to the effect that they would be compensated in some way by the State for testifying, then you must take such beliefs into consideration in determining what weight you should give to their testimony and you may consider such promise or understanding to be, of itself, a strong motivating reason for them to fabricate their testimony and such testimony should be highly suspect and should not be accepted unless it carries with it the absolute conviction of truth.
Instruction S-2
The Court instructs the Jury that each person present at the time of and consenting to and encouraging the commission of a crime and knowingly, wilfully and feloniously doing any act which is a part in the crime or immediately connected with it or leading to its commission is as much a principal as if he had with his own hand committed the whole offense.
Therefore, if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Jerry Lynn Young, was present when Troy Harrison wilfully, unlawfully, and feloniously made an assault upon E.R. Easterling and Patricia Thrasher, agents and employees of Union National Life Insurance Company, Inc., a corporation, and put them in fear of immediate injury to their persons by the exhibition of a deadly weapon, to-wit: a 12 gauge shotgun, and from their presence and against their will did feloniously rob, take, steal and carry away the sum of $1500.00 and more in cash, good and lawful money of the United States, the property of the said Union National Life Insurance Company, Inc., a corporation, and that he, the defendant Jerry Lynn Young consented to or encouraged the commission of that crime and knowingly and feloniously performed any act which was a part in the crime or immediately connected with it or leading to its commission, then you shall find the defendant, Jerry Lynn Young, guilty as charged.

The principle of Instruction D-16 was covered in Instruction D-19, and the Instruction S-2 followed the indictment and the law. It is argued that S-2 permitted the jury to find appellant guilty as an accessory before the fact. However, the instruction is based upon the facts of the State’s case and the law that an accessory before the fact is guilty as a principal.

In our opinion, there was no error in denying and granting the instructions.

XII.

Was the appellant deprived of a fair trial?

The appellant, under this assignment, sets out eighteen (18) instances which he contends deprived him of a fair trial. We have considered the entire record pertaining to that contention and conclude that the appellant received a fair trial and that there is no merit in this assignment.

AFFIRMED.

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

      . The Florida Constitution contains the same wording as the Mississippi Constitution, Art. 3, Sec. 26. “Accused ... shall be heard by himself, or counsel, or both.”


source: Caselaw Access Project

license: Public Domain

text:
    C.D. SMITH, Jr., v. Mary Louise WATSON, Betty Watson, Albert Watson and Lucinda Hughes.
    No. 53318.
    Supreme Court of Mississippi.
    Jan. 14, 1983.

      Self & Jordan, Earl P. Jordan, Jr., Meridian, for appellant.
    Cupit & Maxey, Glenda W. Tomlinson, Jackson, for appellees.
   WALKER, Presiding Justice, for the Court:

C.D. Smith, Jr. filed a petition for writ of habeas corpus in the County Court of Warren County. His petition was filed in order to enforce a child custody decree granted by the Chancery Court of the First Judicial District of Hinds County. On appeal, Smith’s sole assignment of error concerns the county court’s failure to give full faith and credit to the chancery decree.

I.

The unusual factual situation in this case requires a recital of facts involving two lawsuits. Smith is the natural father of Cynthia Dyann Smith, who was born out of wedlock on December 5, 1970. The natural mother, Mary Louise Watson, is a resident of California and has seldom lived with her child. These natural parents have never been married, nor has Smith ever adopted the child as his own. With little exception, Cynthia Dyann has lived with maternal relatives throughout the ten years of her life prior to the lower court hearing: first being with her maternal grandparents until she was seven and then with her aunt, grandfather and mother alternately until 1980.

Following the birth of the child in question, the child’s father, C.D. Smith, Jr., attended school at Mississippi State University and thereafter earned a comfortable salary from his employment. At the present time, he earns approximately $24,000 annually. Nonetheless, Smith contributed to the child’s support solely in the form of clothing and gifts. These contributions did not begin until 1978, when he began visiting the child on infrequent occasions. Moreover, he has never paid any medical expenses or other ordinary expenses for the child.

Following the death of her grandmother in 1977, Cynthia Dyann went to live with Betty Watson, her aunt, in Hinds County, Mississippi, where she was living on February 1,1980 when Smith filed his original bill of complaint for custody in the Hinds County Chancery Court pursuant to Mississippi Code Annotated section 93-11-65 (1972) . Venue for the filing of this custody suit was based on the fact that both the child and her custodian, Betty Watson, lived in Hinds County, Mississippi, but they were not named defendants in the custody action. The only defendant named was the mother, Mary Louise Watson, a non-resident of the state of Mississippi. Service of Process was mailed to Watson in California, but the mail was returned “Refused”, and no answer was filed in the lawsuit, On July 22, 1980, the Chancery Court of the First Judicial District of Hinds County entered a decree awarding the custody of Cynthia Dyann to C.D. Smith, Jr. However, prior to the entry of this decree, Cynthia left Hinds County and traveled to California to live with her mother. The child was returned to Warren County, Mississippi in the latter part of 1980 for a Christmas visit with her grandfather, Albert Watson. When this fact became known to Smith, he filed, inter alia, a petition for a writ of habeas corpus in the County Court of Warren County, seeking aid in obtaining custody of the child under the Hinds County decree and naming as defendants: Mary Louise Watson, mother of the child; Betty Watson, aunt of the child; Albert Watson, grandfather of the child; and Lucinda Hughes, great aunt of the child. In response, the defendants filed an answer and cross-petition which admitted the rendering of the Hinds County 1980 decree but denied that it legally vested custody of the minor child in C.D. Smith, Jr. Their cross-petition further alleged that there had been a material change in circumstances since the rendition of the 1980 decree from Hinds County. In conclusion, the defendants also sought a decree of custody in the mother, or in the alternative, in one of the other relatives made defendant in the action.

At the conclusion of the hearing on the habeas corpus petition and the cross-petition for custody, the county court entered an order finding that the Chancery Court of Hinds County was without jurisdiction when it entered its decree of July 22, 1980, in Cause No. 112,535. The court further gave custody of the minor child to Albert Watson, her grandfather, until further orders of the court with visitation rights being granted to the father and to the paternal grandparents.

II.

The appellant contends that the county court erred in disregarding the prior chancery court decree, and in conducting a full hearing to determine who should have custody. Generally, when prior proceedings conducted by another court determined the custody of an infant, the prior judgment must be regarded as final, and it is not subject to attack by subsequent habeas corpus proceedings. Neal v. Neal, 238 Miss. 572, 119 So.2d 273 (1960); Hinman v. Craft, 204 Miss. 568, 37 So.2d 770 (1948); 39 C.J.S. Habeas Corpus § 129 (1976). However, the habeas corpus court can disregard the prior decree where circumstances and conditions arising since the decree show that the party awarded custody is unfit to exercise or has abandoned custody of the child. Mixon v. Bullard, 217 So.2d 28 (Miss.1968); Bradley v. Graham, 250 Miss. 244, 164 So.2d 772 (1964); 39 Am.Jur.2d Habeas Corpus § 92 (1968). Furthermore, the prior decree can be attacked for want of jurisdiction and thereby rendered void. Accord, Smith v. State, 155 So.2d 494 (Miss.1963); Wheeler v. Shoemake, 213 Miss. 374, 57 So.2d 267 (1952). If the prior court lacked jurisdiction, a full hearing may be conducted, without regard to the prior decree, to determine child custody rights. Griffin v. Bell, 215 So.2d 573 (Miss.1968).

In the instant case, the county court judge concluded that the Hinds County Chancery Court had no subject matter jurisdiction over the matter under Mississippi Code Annotated section 93-11-65 (1972). His ruling was apparently based on an improper interpretation of our ruling in Harper v. Harper, 300 So.2d 132 (Miss.1974). In Harper, we concluded that section 93-11-65 provided a remedy to gain child support for a child born before marriage, if the father had subsequently acknowledged the child as his own after marriage to the mother. The Harper ruling did not exclude the availability of section 93-11-65 as a means for unmarried natural fathers to obtain custody of illegitimate children. Nor do we embrace such an exclusion now, and therefore, the chancery court properly held subject matter jurisdiction of Smith’s suit for custody.

At the conclusion of the habeas corpus hearing, the county court judge granted custody of the child to its maternal grandfather, Albert Watson, without making any finding that both natural parents were unfit or had abandoned the child.

In resolving such custody matters the best interest and welfare of the child is the key. Lindauer v. Charleston, 58 So.2d 69 (Miss.1952); Haynie v. Hudgins, 122 Miss. 838, 85 So. 99 (1920); Glidewell v. Morris, 89 Miss. 82, 42 So. 537 (1906). But, all things being equal, all jurisdictions recognize that the mother of an illegitimate child, if the mother is a suitable person, has the primary right to the child’s custody. H. Clark, Jr., Law of Domestic Relations 176 (1968); Annot., 98 A.L.R.2d 417, 420 (1972). After the mother, most jurisdictions recognize that the putative father of the child has a superior right against all others to the custody of the child. Annot., 45 A.L.R.3rd 216, 220 (1972). Mississippi follows this majority rule. Aycock v. Hampton, 84 Miss. 204, 36 So. 245 (1904); Hibbette v. Baines, 78 Miss. 695,29 So. 80 (1900). Furthermore, upon acknowledging the child as his own, the father has an equal claim, with the mother, to the parental and custodial rights to the child. N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981). If neither parent is fit or has abandoned the child, then the court is empowered to grant custody to some other suitable party.

We are of the opinion that the habeas corpus court reached the right result in part, but for the wrong reason.

In suits between the parents of children involving the children’s custody, neither the children nor third persons are necessary parties. However, where the child or children are in the custody of a third person, such as a grandparent or an aunt, as we find in this case, any decree awarding custody to one natural parent or the other is not binding on the grandparent or aunt unless they were made parties to the original custody suit. 24 Am.Jur.2d Divorce and Separation § 791 (1966); Favre v. Medders, 241 Miss. 75, 128 So.2d 877 (1961); Pace v. Barrett, 205 So.2d 647 (Miss.1968); Noble v. Noble, 302 Ky. 679, 195 S.W.2d 319 (1946); see also Henderson v. Kleinman, 231 Ind. 657, 109 N.E.2d 905 (1953). That is to say, the grandfather and aunt are not necessary parties to the extent that it would affect the validity of the decree as between the mother and father, but would not themselves be bound by the decree if they were not made parties. The aunt and grandparent would be proper parties if made defendants, although not necessary parties.

In the ease sub judice, the aunt and grandfather were not made parties to the original Hinds County Chancery Court proceeding between the mother and father of the child, Cynthia Dyann. Therefore, the decree of custody as between the mother and father is not conclusive and binding on them. When presenting their evidence at the habeas corpus hearing, the grandfather and aunt were not limited to showing a change of circumstances that occurred after the entry of the Hinds County decree, but could present evidence with reference to the facts surrounding their right to custody from the time the child began living with the grandfather and grandmother as an infant.

As stated earlier, the habeas corpus court found that the best interest of the child would be served by awarding its custody to the maternal grandfather; and, we are unable to say that the habeas corpus court was in error in so holding. The evidence is virtually uncontradicted that the child, Cynthia Dyann, lived with the maternal grandparents practically without interruption for the first seven years of her life, and that the natural father, J.D. Smith, Jr., had abandoned the child and thereby forfeited his right to her custody long before this lawsuit was begun. Evidence of appellant Smith’s abandonment of the child is as follows:

1970 — The father was not present at the time the child was born, but appellant saw her for the first time within a matter of weeks. There is no evidence in the entire transcript that the appellant offered to pay or in fact paid any support or medical expenses for the minor child.

1971 — The appellant saw the minor child once during spring break and in the summer. No money or other forms of support were provided by the appellant or his family with the exception of some babysitting services during the first eight months of the minor’s life.

1972 — Appellant was a student at Mississippi State University. The appellant did not see nor support the minor child.

1973 — The appellant did not see nor support the minor child. Appellant was a student, earned an undisclosed amount of income while he served six months in the military and continued as a reserve member.

1974 — Appellant was a student and continued as a member of the reserve. The appellant did not see nor support the minor child. Appellant was a student and continued as a member of the reserve.

1975 — Appellant was employed in West Point, Mississippi after graduation from school, earning $150.00 per week. Appellant did not see the minor child nor contribute to her support.

1976 — Appellant was employed in West Point, Mississippi at $150.00 per week. Appellant did not see the minor child nor contribute to her support.

1977 — Appellant was employed in Meridian, Mississippi at $15,000.00 per year. Appellant did not see the child nor contribute to her support nor send any gifts to the child.

1978 — Appellant was earning $20,000.00 per year, and contributed approximately $500.00 during 1978 to the minor child’s support. There is a conflict in the testimony as to the number of times he saw the minor child during 1978. Appellant states he saw her three times a month. Her custodian during that period of time, Betty Watson, testified that he saw the child only three times during the entire year of 1978.

1979 — Appellant earned $22,000.00. There is a conflict in testimony as to the amount of money he contributed to the child’s support and how often he saw her. The appellant testified that he contributed between $500.00 and $600.00 to her support during 1979, and saw the child approximately two or three times a month. Her custodian during 1979, Betty Watson, testified that he saw the child seven times and purchased four or five pieces of clothing for her during 1979 as the total amount of his support. Although the child was permitted to go to Meridian to visit the appellant, it was her custodian who paid for the bus tickets. Betty Watson was never reimbursed by the appellant for transportation costs.

1980 — Appellant earned $24,000.00, but contributed nothing to the support of his child. He was further unwilling to pay any cost of transportation in order to see the child over the Christmas holidays. There is no testimony in the record that the appellant ever sent the child a Christmas gift or birthday gift until her birthday in 1980, when he sent her a card and $10.00.

The test as to what constitutes an abandonment is found in Bunkley & Morse’s Amis on Divorce and Separation in Mississippi § 8.04 where it is said:

A careful study of the reported cases shows that where a parent, without just cause or excuse, forsakes or deserts his infant child for such a length of time, and under such circumstances, as to show an intent to shirk or evade the duty, trouble or expense of rearing it, or a callous indifference to its wants, or a reckless disregard for its welfare, he or she is guilty of such abandonment of it as to bar his or her right thereafter to reclaim its custody from any person who may have ministered to and protected it during such period of desertion. Such conduct conclusively rebuts and overthrows the presumption that the welfare of the child would, other things being equal, be best served by the custody and control of the parent. Having once deserted the child, there is no guaranty that such a parent might not in the future be guilty of some equally atrocious conduct toward it.

The conduct of the child’s natural father, C.D. Smith, Jr., fits the above criteria so fully that it could have been written for this particular case. By the time Cynthia Dyann was seven years of age, Smith’s abandonment of the child was so firmly established as to bar his right thereafter to reclaim custody from the grandparents. Any future relationship between Smith and Cynthia Dyann and her grandfather, shall not be as a matter of Smith’s right but must arise out of mutual love and respect.

We express no opinion as to the mother’s qualifications with respect to having custody of Cynthia Dyann. We do take note, however, that the habeas corpus court did not have the authority to award visiting rights to the child’s father and the paternal grandparents. Nor did the habeas corpus court have the authority to maintain continuing jurisdiction over this matter.

The habeas corpus court properly denied the appellant’s petition for writ of habeas corpus and is affirmed thereon. That part of the court’s order permitting visitation rights to the child’s father and paternal grandparents is reversed and set aside.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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

APPENDIX “A”

In addition to the right to proceed under section 93-5-23, Mississippi Code of 1972, and in addition to the remedy of habeas corpus in proper cases, and other existing remedies, the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters. Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child. All actions herein authorized may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant. Process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein after diligent search and inquiry or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in term time or in vacation to which process may be returnable and shall have power to proceed in term time or vacation. Provided, however, that if the court shall find that both parties are fit and proper persons to have custody of the children of the marriage, and that either party is able to adequately provide for the care and maintenance of the children, and that it would be to the best interest and welfare of the children, then any such child who shall have reached his twelfth (12th) birthday shall have the privilege of choosing the parent with whom he shall live.

Provided further, that where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each.

      . The full text of Section 93-11-65 is attached as Appendix “A.”

      . See the last two paragraphs of this opinion.


author: WALKER, Presiding Justice, for the Court: HAWKINS, Justice,

text:
    Clayton W. CARLETON v. STATE of Mississippi.
    No. 53481.
    Supreme Court of Mississippi.
    Jan. 14, 1983.

      Wittman & Berry, Thomas D. Berry, Jr., Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Presiding Justice, for the Court:

The appellant, Clayton W. Carleton, was convicted of murder in the Circuit Court of the First Judicial District of Harrison County and sentenced to a term of life in the custody of the Mississippi Department of Corrections. From that judgment and sentence, Carleton appeals. We affirm.

On July 21,1980, at approximately 8:30 in the evening, the deceased, Jack Newton Myers, was helping two friends, James H. Vincent and Rayford “Pee Wee” Hosford, put a bilge switch on Hosford’s boat which was docked at the small craft harbor in Gulfport. At this same time, some distance away, two young girls, one, fourteen, and one, sixteen years of age, were talking to three boys who were sitting on an automobile, one of whom was identified as Carle-ton. Carleton had a pistol “waving it around.” He told the girls that the gun was not loaded and let one of them hold it. Carleton offered the girls a beer, which they accepted. He also offered them a quaalude, a form of dope, which they declined and he asked them if they wanted to “get laid,” which they also declined. One of the boys asked if they wanted to steal a boat and go for a ride. Upon declining to be “laid,” one of the boys with Carleton told the girls to “get on down the road” and started chasing them past the point where Myers and his friends were working on the boat.

The victim, Jack Myers, Vincent and Hos-ford heard the two young girls “coming down the street running, and there was two boys, men, behind them, using profane language.”

The appellant was not one of the men chasing the girls. Myers raised up and said, “you all ought not to use that kind of language amongst young girls.” The two young men then went back and got in a Riveria Buick automobile and drove toward the cafe at the end of the harbor. In approximately ten minutes, after Myers, Vincent and Hosford finished putting on the switch and walked to the entrance to Pier No. 2 of the harbor, a Riveria Buick automobile pulled up and parked across the street. Carleton and two other men got out and walked toward Myers and Vincent. Vincent, a witness for the State, described what then happened:

They walked over, and one nudged me off where I was leaning up against a little pier, nudged me over to the step and I stepped one step down, and the other one said [to Jack Myers] “you are the son-of-a-bitch with the big balls”, and about the time he said “balls”, he turned around like that and said “B-a-a-m”, and turned and looked at me and cocked the gun and throwed it over on me, and I fell over on the platform and covered up, and heard another racket and Pee Wee was down and I looked and he had it on Pee Wee. He didn’t shoot, and turned around, didn’t run, but in a fast trot, trotted back to the car, and the car sped off, and he got down the street about, I would say, a hundred and fifty yards and cut the headlights out, and that’s the last I see of him.

Vincent further testified that Jack Myers fell after being shot and was gasping for breath and that Carleton was the person who shot him. Myers was dead when the medics arrived.

The two young girls, Vincent, Hosford and one David Cooper testified on behalf of the State with regard to the barbaric, cruel and unnecessary killing.

The appellant’s primary defense was insanity. However, by their verdict, the jury found him to be sane.

On appeal, - Carleton makes several assignments of error. However, the evidence of the appellant’s guilt in this case is so strong that absent his being insane, which the jury rejected, any argument to the contrary defies logic or reason.

PROPOSITION NO. 1

The appellant first contends that the lower court erred in failing to grant a mistrial when the district attorney told the jury during closing argument that appellant had a man take the gun in question apart in a backroom.

During final argument the attorney for appellant told the jury that the expert for the State had not torn the gun down to examine it. In response to this statement the district attorney, in his closing argument, told the jury that the gun had been taken apart “right back there in that room.” Whether true or not, the district attorney went outside of the record in making the statement. An objection was interposed which was sustained and a motion for a mistrial was overruled. However, the court instructed the jury to disregard the statement and we can only assume that they abided by his instructions. In any event, we are of the opinion that the statement could not have had any effect on the ultimate verdict of the jury.

PROPOSITION NO. 2

The appellant contends that the court erred in allowing the district attorney to make prejudicial remarks to the jury.

(a) The appellant first contends that any reference to the fact that the two young children and wife of the deceased would be having birthdays without their daddy and husband “because of the dastardly act of a dope peddler on the way from Florida who stops in Gulfport, Mississippi, and decides to take a man’s life,” was highly inflammatory and there was no evidence that Carleton was a dope peddler. The objection was overruled by the court.

The appellant now contends that the prosecuting attorney went outside of the record in stating that the appellant was a dope peddler and committed error by bringing in evidence of another crime.

An examination of this record reveals that the district attorney did not go outside of the record in mentioning that appellant was a dope peddler. Both the doctor offered by the appellant and the doctor offered by the State on the question of whether appellant was sane or insane testified that appellant had said that he had gone to Florida to purchase drugs and was unable to get all that he wanted. The doctor for the State further testified that Carleton told him that he had put up $2,000.00 of his money for drugs in Florida and had purchased 800 quaaludes to bring back to Louisiana. In our opinion, the purchase of such a large quantity of drugs certainly raises a reasonable inference that they are purchased for resale. Therefore, the appellant’s contention is without merit.

(b) The appellant next contends that “The Jury is told [by the district attorney] that the attorney that represents Appellant is a flim-flam artist, the conditions of the penitentiary are excellent with air conditioned buildings and that attorney had been furnished Appellant at no cost to Appellant.” Appellant concedes that objections to these remarks were sustained but asserts that they had already done damage which could not be removed. First, the district attorney did not refer to the appellant as a “flim-flam” artist, but said that the defense presented was a “flim-flam defense.” It is true that the district attorney stated that Mr. Berry had been doing that ever since he had been practicing law, and when the two are read together it might be said that the district attorney was calling Mr. Berry a “flim-flam artist.” However, as stated earlier, the trial court sustained the objection to this statement and there was no request that the court instruct the jury to disregard it. Further, in all fairness to the district attorney, Mr. Berry had earlier questioned his prosecutorial ability by calling this case the case of the “refried beans,” adding that the reason that the Mexicans cook refried beans is that “... they can’t do anything right the first time. And that’s what we are talking about here, because this is the second time this case has been tried.” We do not condone this type of argument by the attorneys on either side. However, any former trial judge knows that the zeal of advocacy by counsel on both sides invariably leads to exchanges of this sort. When the exchanges get out of hand, the trial judges have the authority to and should impose appropriate sanctions. The remarks of this case, in our opinion, were not reversible error.

(e) The appellant next complains about the following statement made by the district attorney in closing argument. “... I think when you go back [in the jury room] ... you are going to find that this can be nothing but murder. You know, we have got to let people know what the people of Harrison County stand for.”

Objection was interposed, which was overruled by the court and the district attorney continued. “They stand for honesty, justice and equality, and tell all the Clayton W. Carleton’s T don’t care where you come from.’ ”

We have carefully examined the record with regard to the above statement and find nothing improper about it and are of the opinion that the trial court properly overruled the appellant’s objection to the statement.

PROPOSITION NO. 3

The appellant contends that the court erred in permitting witness, David A. Cooper, to testify.

The Court has examined the record with regard to this assignment of error and find it to be without merit. David A. Cooper’s name was listed on the back of the indictment as a prospective witness, his name was furnished during the first trial as a prospective witness and appellant’s attorney was given an opportunity to interview the witness prior to the present trial. After conducting a hearing on the question of whether the witness Cooper could testify, the trial court ruled as follows: “It would not be prejudicial in the mind of the court to allow this defendant [sic-witness] to testify when you balance the rights of society and the defendant, given the fact that Mr. Berry [counsel for appellant] did interview the witness.” Furthermore, appellant produced no evidence on his motion for a new trial that he had been harmed or prejudiced by not having earlier notice that Cooper would testify. Therefore, that assignment of error is without merit.

PROPOSITION NO. 4

The appellant contends that the court erred in overruling appellant’s motion to quash arid exclude the jury panel and in limiting the defense to inquire on voir dire as to what the jurors had read or heard from the news media.

We have carefully considered this assignment of error and are of the opinion that no reversible error occurred. The record is skimpy with reference to the questions which counsel for the appellant would have asked and we are left to pure conjecture and surmise as to what the full extent of the questions would have been.

We stated in Jones v. State, 381 So.2d 983 (Miss.1980) that “The trial court has broad discretion in passing upon the extent and propriety of questions addressed to prospective' jurors.... Although broad, the discretion is not unlimited, and an abuse will be found on appeal where clear prejudice to the accused results from undue constraint on the defense.... ”

We are unable to determine from this record that prejudice resulted to the accused as a result of the court’s rulings on objections during voir dire.

PROPOSITION NO. 5

The appellant next contends that “The lower court erred in allowing the district attorney over the objection of the appellant, to frame his hypothetical to the psychiatrist, Dr. Maggio, and to question the psychologist, Dr. Yarnell, on matters outside the evidence.”

In this regard, the appellant contends that there was no evidence that the appellant hid the gun which was found buried by a telephone pole in Louisiana or that he cannabalized his car by taking the vehicle identification off and other serial numbers as well as stripping it of a door, tires off the rear, and its transmission.

It was the State’s theory that the appellant buried the gun by the telephone pole and stripped his automobile in an effort to avoid detection and being apprehended. In our opinion this was a reasonable inference to be gathered from the evidence. Facts which are not supported by direct testimony, but which are readily in-ferable from the evidence, may be embodied in a hypothetical question to an expert witness. Rational inferences may be drawn from the record to form the basis for the question. The interrogator may form his question upon any theory which can reasonably be deduced from the evidence. Thus, a hypothetical question may properly include as a fact that which may reasonably be inferred from the direct and circumstantial evidence. State ex rel. Richardson v. Edgeworth, 214 So.2d 579 (Miss.1968); McCormick on Evidence, § 14 (1954); 2 Wigmore on Evidence, § 682 at 805 (3d ed. 1940); see Prewitt v. State, 106 Miss. 82, 63 So. 330, 6 A.L.R. 1476 (1913).

In Chapman v. Carlson, 240 So.2d 263 (Miss.1970), quoting from Am.Jur., “... The interrogator may frame his question on any theory which can reasonably be deduced from the evidence and select as a predicate therefor such facts as the evidence proves or reasonably tends to establish or justify.”

It is the duty of the trial court to control the propounding of hypothetical questions and the method of testifying by expert witnesses. It exercises a judicial discretion which ought not to be overridden, unless it very clearly appears to have been wrongfully exercised. Providence Washington Ins. Co. v. Weaver, 242 Miss. 141, 133 So.2d 635 (1961); See Cadillac Corporation v. Moore, 320 So.2d 361 (Miss.1975).

For the above reasons, this assignment of error is without merit.

PROPOSITION NO. 6

The appellant contends that the lower court erred in granting Instruction S-4 which told the jury:

The Court instructs the jury that malice aforethought mentioned in the indictment in this case may be presumed from the unlawful and deliberate use of a deadly weapon.

This Court has held in a number of cases that the granting of this instruction was reversible error. See Hendrieth v. State, 230 So.2d 217 (Miss.1970); Blackwell v. State, 257 So.2d 855 (Miss.1972); and cases cited therein. However, each case must stand on its own facts in determining whether a particular error constitutes reversible error. In this case, absent the appellant being insane, which defense was rejected by the jury, where Carleton cold-bloodedly, needlessly, without provocation, and without any justification walked up to Jack Myers and shot him with a .44 caliber magnum pistol, killing him instantly.

In our opinion, the court’s error in granting the above instruction was harmless beyond a reasonable doubt and could have had no effect on the verdict of a fair-minded jury.

We have carefully considered the remaining assignments of error and find them to be wholly without merit.

The judgment and sentence of the trial court sentencing Carleton to life in prison are affirmed.

AFFIRMED.

PATTERSON, C.J., SUGG, P.J., and ROY NOBLE LEE, BOWLING and PRATHER, JJ., concur.

HAWKINS, BROOM and DAN M. LEE, JJ., dissent.

HAWKINS, Justice,

dissenting:

In deference I am compelled to dissent.

In my view it was reversible error to grant instruction S-4 for the State:

The Court instructs the jury that malice aforethought mentioned in the indictment in this case may be presumed from the unlawful and deliberate use of a deadly weapon.

This instruction is only proper when the accused is the only witness to a homicide, and the State can only prove two things: (1) the defendant killed a human being with (2) a deadly weapon. In such a case it is up to the defendant to come forward with the circumstances justifying the slaying. If he fails to do so, the State is entitled to this instruction. In McDaniel v. State, 16 Miss. (8 S. & M.) 401 (1847), we stated:

When the fact of killing, with all its attendant circumstances, is clearly proved, and the testimony either shows express malice, or that there was no malice at all, there is no room for presumption. But in cases where the killing is proved, and no accompanying circumstances appear in the evidence, the law presumes the killing was done maliciously-

Id. at 417.

In this case four eyewitnesses testified to the slaying. Two of them were in a position to observe and testify as to all the facts and circumstances surrounding the slaying. Furthermore, the defendant pleaded insanity. This instruction could only have had the effect of bolstering the State’s case and it was reversible error to give it. See Blackwell v. State, 257 So.2d 855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Chinn v. State, 210 So.2d 666 (Miss.1968); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. 214, 148 So.2d 710 (1963); Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962); and Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955).

I note in this case that defense counsel strenuously objected to this instruction, and informed the court it would almost surely lead to reversal.

Once again I perceive a disconcerting tendency to ignore historical precedent wherein we either affirm upon an erroneous instruction granted the State, or the refusal to give a perfectly proper instruction requested by the accused, which in previous cases have been held to constitute reversible error.

Here, at least, the majority acknowledges the granting of this instruction was error, but justifies affirmance under the rubric “harmless” error “beyond a reasonable doubt.”

To ignore well settled, salutary principles of law in one case can only exponentially exacerbate the problem for later cases and future members of this Court.

As noted in the majority opinion, other errors occurred in this trial, especially the statement by the district attorney that defense counsel knew the mechanics of the pistol. This statement should not recur upon re-trial, however, and does not reach the magnitude of the erroneous instruction granted the State.

I would reverse and remand.

BROOM, J. and DAN M. LEE, JJ., join this dissent.

      . “Malice aforethought,” of course, means a preconceived evil intent or design, which is contrary to a defense of insanity or culpable negligence.


text:
    John B. RAINES, Jr., et ux. v. D.L. SPRUILL.
    No. 54025.
    Supreme Court of Mississippi.
    Jan. 19, 1983.
    Rehearing Denied Feb. 16, 1983.
    Ben F. Hilbun, Jr., Starkville, for appellants.
    McAlpin & Wise and Dolton W. McAlpin, Starkville, for appellee.
   Appeal from Chancery Court, Oktibbeha County; Lenore L. Prather, Chancellor.

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

AFFIRMED.

PRATHER, J., took no part.


text:
    AMERICA’S FOUNDATION v. Thomas TARDY.
    No. 53582.
    Supreme Court of Mississippi.
    Jan. 19, 1983.
    Richard Barrett, Jackson, for appellant.
    Thomas, Price, Alston, Jones & Davis, Alex A. Alston, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

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

AFFIRMED.


text:
    John L. BOYD v. STATE of Mississippi.
    No. 53843.
    Supreme Court of Mississippi.
    Jan. 26, 1983.
    Ronald Windson, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Alcorn County; Neal Biggers, Judge.

Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.

AFFIRMED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS, and DAN M. LEE, JJ. concur.

ROBERTSON, J., takes no part.


author: DAN M. LEE, Justice, for the Court:

text:
    Bobby Ree EVANS v. STATE of Mississippi.
    No. 53882.
    Supreme Court of Mississippi.
    Jan. 26, 1983.
    Ben F. Hilbun, Jr., Starkville, for appellant.
    Bill Allain, Atty. Gen. by Carlton McCullough, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BROOM and DAN M. LEE, JJ.
   DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Oktibbeha County wherein Bobby Ree Evans, appellant, was indicted, tried and convicted for the January 8, 1982, armed robbery of Pearl Johns, an employee of the Factory Outlet and Frame and Gift Shop in Starkville, Mississippi. Upon conviction, the trial judge ordered that Evans be imprisoned with the Mississippi Department of Corrections for a period of twenty years. Aggrieved of his conviction and sentence, Evans appeals. We affirm.

On January 8, 1982, at approximately 2:30 p.m., an armed robbery occurred at the Factory Outlet and Frame and Gift Shop in Starkville. Pearl Johns, an employee of the shop at the time, identified appellant as the perpetrator of the crime.

Appellant was arrested at approximately 2:31 p.m., one and a half blocks away from the scene of the crime. Money was recovered from appellant’s person which included a large amount of change. However, no weapon was found on his person.

Appellant denied committing the robbery. He asserted he had earned the money found on his person while working. When asked about the large amount of change, appellant responded that he always carried a lot of change and had gotten extra change on this particular day to do his laundry.

The jury returned a verdict of guilty as charged. Upon failure of the jury to affix appellant’s punishment at life, the trial judge sentenced him to twenty years.

I. Did the trial court err in allowing the state to amend the indictment during the course of the trial to reflect the proper surname of the victim of the alleged armed robbery?

The indictment in the present case charged as follows:

THE GRAND JURORS of the State of Mississippi, taken from the body of the good and lawful men and women of said County, duly elected, empanelled, sworn and charged, at the Term aforesaid of the Court aforesaid, to inquire in and for the body of the County aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: That BOBBY REE EVANS late of the County aforesaid, on or about the 8th day of January, 1982, in the County aforesaid did unlawfully, wilfully & feloniously, take, steal, and carry away from the presence of PEARL JOHNSON the personal property of the FACTORY OUTLET AND FRAME AND GIFT SHOP, a partnership consisting of A.C. THOMPSON and JUANITA THOMPSON, to wit: Approximately $45 in money against the will of the said PEARL JOHNSON by putting her in fear of immediate injury to her person by the exhibition of a deadly weapon, to wit: A knife, with the intent to permanently deprive the owner thereof.

Appellant’s trial began approximately one month after the indictment was returned. The State’s first witness was Pearl Johns, the victim of the crime. Following the conclusion of her testimony, defense counsel moved for a mistrial, asserting that the variance between the victim’s name as shown by the indictment and the victim’s true name deprived him of the opportunity to prepare a defense to her testimony. The state thereafter moved to amend the indictment to conform to the proof, which motion was granted by the trial court.

Appellant contends that by allowing the state to amend the indictment, he was denied his right to adequately prepare his defense. Appellant relies on Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice which governs discovery in a criminal prosecution. It provides in part:

The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:
(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;
(2) Copy of any recorded statement of the defendants to any law enforcement officer.
Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to defense counsel as justice may require.

Mississippi Code Annotated section 99-17-13 (1972) provides:

Whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any county, city, town, village, division, or any other place mentioned in such indictment, or in the name or description of any person or body politic or corporate, therein stated or alleged to be the owner of any property, real or personal, which shall form the subject of any offense charged therein, or in the name or description of any person, body politic or corporate, therein stated or alleged to be injured or damaged; or intended to be injured or damaged, by the commission of such offense, or in the Christian name or surname, or both, or other description whatever, of any person whomsoever, therein named or described, or in the ownership of any property named or described therein, or in the description of any property or thing, it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the ease, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and proceedings in the court to be amended according to the proof, whenever it may be deemed necessary by the court to amend such indictment, record, and proceedings, on such terms as to postponing the trial, to be had before the same or another jury, as the court shall think reasonable. After such amendment, the trial shall proceed in the same manner, and with the same consequences in all respects, as if a variance had not occurred; but if the court shall, on application, refuse a continuance, the defendant may take a bill of exceptions thereto, and assign such refusal for error, (emphasis ours).

In Miller v. State, 53 Miss. 403 (1876), Miller was charged with assault with a deadly weapon of Roan Blackman. After the state had rested its case, the trial court sustained the state’s motion to amend the indictment to change the victim’s name from Blackman to Blackburn so as to conform to the proof. On appeal, this Court held that such action was proper. In Graves v. State, 148 Miss. 62, 114 So. 123 (1927), Graves was indicted for uttering a forgery. The indictment set up a copy of the check in which Tanks Keys was payee; however, the proof established that the payee’s name was Tanks Kings. The trial court thereafter allowed the indictment to be amended to conform to the proof. On appeal, this Court upheld the amendment to the indictment. In Belina v. State, 228 Miss. 330, 87 So.2d 919 (Miss.1956), Belina was indicted for the murder of Edward Handley. During the course of the trial it developed that the deceased’s name was Edward Handy. A motion to amend the indictment was sustained and the trial court’s action was upheld on appeal.

Turning to the facts in the case sub judi-ce, the amendment to the indictment changed the surname of the victim of the crime from Johnson to Johns. As heretofore shown, such action by the trial court is clearly supported by our previous decisions.

Based on the foregoing, appellant’s conviction and sentence are hereby affirmed.

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

      . According to Pearl Johns, appellant threatened her with a knife to effectuate the robbery.

      . Other cases wherein amendments have been allowed to change the victim’s first name are as follows:

        JONES V. STATE, 279 So.2d 594 (Miss.1973), indictment amended during trial to correct victim’s name from Larry Smith to James Smith in prosecution for sale of marijuana;

        McDOLE V. STATE, 229 Miss. 646, 91 So.2d 738 (1957), indictment amended before trial to correct victim’s name from Vemell Harris to Ida Pearl Harris in burglary prosecution;

        GILLESPIE V. STATE, 221 Miss. 116, 72 So.2d 245 (1954), indictment amended before trial to correct victim’s name from Zach Edwards to Lish Edwards in murder prosecution;

        DAVIS V. STATE, 150 Miss. 797, 117 So. 116 (1928), indictment amended during trial to correct victim’s name from Ernest Jones to Man Jones in murder prosecution;

        STATE V. GRADY, 147 Miss. 446, 111 So. 148 (1927), holding that if letters in an indictment preceding the names of the partners of a business were initials and not their full Christian names, such could be amended to correspond to the facts; and

        MILLER V. STATE, 68 Miss. 221 (1890), indictment amended to allow the true Christian name of deceased in murder prosecution.


text:
    REAGAN EQUIPMENT COMPANY v. VAUGHN GIN COMPANY.
    No. 53545.
    Supreme Court of Mississippi.
    Jan. 26, 1983.

      Gerald, Brand, Watters, Cox & Hemle-ben, Richard T. Starrett, Jackson, for appellant.
    Henry, Barbour & DeCell, William H. Barbour, Yazoo City, for appellee.
    Before PATTERSON, C.J., and ROY-NOBLE LEE and PRATHER, JJ.
   PATTERSON, Chief Justice, for the Court:

In September of 1979, Sam Dixon, President of Vaughan Gin Company, appellee, contacted Reagan Equipment Company, appellant, concerning mechanical problems he was experiencing with a large gin engine. Bobby Nichols, service manager at appellant’s Jackson office, sent a repairman to inspect the engine and it was determined an extensive overhaul was necessary to make it serviceable.

Dixon came to the appellant’s office to discuss the cost of repairs and after inspecting some used engines and considering their cost, authorized the overhaul of his engine. He testified the appellant told him he could repair the engine for around $12,000. This was contradicted by Nichols who stated Dixon was not given a cost estimate because this was time consuming and Dixon needed the engine for the approaching ginning season. In any event Dixon authorized the engine’s overhaul and additional repairs on the engine starter and clutch for an additional $2400 and overtime totaling $1,500. The engine was repaired and returned to Dixon with a bill for $34,438.93. After no payment was forthcoming, appellant sought a judgment for the repairs and a lien on the engine. The appellee admitted owing $15,900, but denied any obligation in excess of that sum.

During trial Reagan attempted to introduce the bill and its reasonableness into evidence through Nichols, the service manager. The court would not permit its introduction by Nichols because the invoice was prepared in appellant’s home office in Harvey, Louisiana. The judge reasoned a witness from the home office was essential to its introduction, however, Dixon was called by the appellant as an adverse witness and gave evidence to the amount of the bill whereupon it was introduced.

Nichols was then recalled and interrogated concerning the amount of the bill and its reasonableness. The appellee again objected stating that Nichols did not prepare the bill and therefore could not testify as to its amount or reasonableness. Upon the objection being sustained Reagan made a proffer through Nichols who gave testimony of similar bills for the type and extent of the work performed and it was his opinion the repairs to the engine were reasonable and necessary.

After lunch Reagan called one of its Jackson office employees as a witness, whereupon Dixon requested permission to voir dire the proposed witness concerning a possible violation of “the rule.” Alexander, the proposed witness, testified he had lunch with Reagan’s counsel and Nichols during which he discussed with the attorney his upcoming testimony concerning the introduction of the invoice into evidence. He testified he did not hear Nichols testify and that his testimony was not discussed. After this testimony, upon motion of Dixon, Alexander was excluded as a witness because “the rule” had been violated.

Reagan then rested and Dixon moved to strike the evidence and dismiss the declaration on the ground that plaintiff did not establish that he was qualified and licensed to do business within the state, and there was no evidence presented as to the reasonableness of the bill charged to the defendant. Reagan responded, stating that an affidavit attached to the declaration evidenced the reasonableness of the repairs and requested permission to reopen the case so he might introduce a Certificate of Authority from the Secretary of State that appellant was licensed and qualified to do business in Mississippi. The court denied appellant’s request to reopen and granted defendant’s motion for dismissal with prejudice. Moreover, although the declaration was dismissed, appellant was granted a judgment in the amount Dixon admitted owing in his answer, $15,900.

Reagan assigns as error the court’s refusal to allow it to reopen its case to introduce the Certificate of Authority from the Secretary of State evidencing it was licensed and qualified to do business in Mississippi. Undoubtedly, the opportunity to reopen should be granted when the opposing party would not be surprised and when a refusal would deprive a litigant of the opportunity to introduce material evidence.

In Nelson v. Home Ins. Co., 353 So.2d 763, 765 (Miss.1977), we cited Marshall v. Oliver Electric Manufacturing Company, 235 So.2d 244 (Miss.1970), wherein this Court held:

As a general rule, even in formal hearings in a regular trial court, the reopening of a case for the purpose of showing facts vital to the issue involved, is liberally allowed by the trial judge and a failure to do so may be considered an abuse of judicial discretion. (Emphasis added).

See also Scott v. McClinton, 214 Miss. 364, 58 So.2d 913 (1952). When appellant requested permission to reopen for the limited purpose of offering the Certificate into evidence, no prejudice would have resulted to appellee, and no delay in the proceedings would have occurred, it was error for the court to refuse appellant’s motion in our opinion.

Appellant next contends the court erred in excluding the testimony of Alexander because “the rule” had been violated.

The purpose of “the rule” is to prevent witnesses from being in the courtroom while other witnesses testify so as to insure their testimony will not be affected by that of other witnesses. See 6 Wigmore, Evidence §§ 1837-1838 (Chadbourn rev. 1976); Fed.R.Evid. 615 advisory committee note. Cf. Ross v. Segrest, 421 So.2d 1234 (Miss.1982); Commercial Credit Equipment Corp. v. Kilgore, 221 So.2d 363 (Miss.1969); Moore v. Chambers, 199 So.2d 261 (Miss.1967); Grimes v. Grimes, 197 Miss. 315, 20 So.2d 662 (1945); Wilson v. Peacock, 111 Miss. 116, 71 So. 296 (1916); Bernheim v. Dibrell, 66 Miss. 199, 5 So. 693 (1889). The voir dire reveals Alexander was not in the courtroom and the conversation between counsel and Alexander related only to his upcoming testimony concerning the invoices.

Of course a court has the discretion during or before trial, to exclude witnesses from the courtroom. However, we think, the attorneys in the case may consult with the witnesses who have been put under “the rule.” In Scott v. State, 218 Miss. 892, 56 So.2d 839, 840 (1952), defendant’s attorney requested permission to confer with their witnesses “altogether.” In denying this motion, the trial court said:

“When the witnesses were sworn before the taking of testimony began, counsel for Defendant stated to the Court that he wished the rule invoked, whereupon, the rule was invoked....
The Court will allow counsel all the time reasonably necessary for him and his associate and his client to confer with the witnesses but not altogether.” (Emphasis added).

Appellant assigned as error this action by the court. This Court held:

Although the court assigned as a reason the fact that appellant had put all of the witnesses under the rule, and this would not usually be the proper basis for such action, it is apparent that the court’s ruling at this stage of the trial was based also on a desire to conserve time and to expedite the hearing....
The cases relied upon by appellant, White v. State, 1876, 52 Miss. 216; Allen v. State, 1884, 61 Miss. 627, and Shaw v. State, 1901, 79 Miss. 21, 30 So. 42, are not applicable, because there the trial courts wholly refused to permit defendants’ attorneys to confer with witnesses. There was no such .refusal here, but on the contrary the court expressly granted counsel the right to confer with the witnesses, but at that late stage in the trial denied a conference with the witnesses “altogether.”

Where a defendant indicted for murder was refused permission to confer with his witnesses after the state rested we held in Shaw v. State, 79 Miss. 21, 24-25, 30 So. 42 (1901):

It was fatal error to refuse the defendant the privilege of conferring with his own witnesses, whether they were under the rule or not. This has been so held where his counsel were refused this right. White v. State, 52 Miss., 216; Allen v. State, 61 Miss., 627 .... It is often of vital importance that both defendant and his counsel should, together, confer with his witnesses in the progress of a trial. The right cannot be restricted except that the trial court may impose reasonable limitations as to the length of time of the conference.

We are of the opinion from the voir dire that the trial court abused its discretion in not permitting Alexander to testify.

It is next argued there was error in excluding testimony as to the sum of the repairs. The court disallowed the introduction of the bill for repair through Nichols because Nichols was not in charge of billing but referred the information upon which the bill was prepared to its home office in Harvey, Louisiana. We think it unnecessary to reach this argument because the invoice was subsequently introduced through an adverse witness and such error, if any, was cured.

The next issue is whether the court erred in not allowing Nichols’ testimony as to the bill’s reasonableness once it was introduced. Appellee contends there was no evidence that Nichols knew the prices of the parts, nor did he vouch for the correctness of the charges, nor testify as to the reliability of the charging procedure. Therefore, appel-lee argues Nichols was not qualified as an expert to express his opinion as to the reasonableness of the charges.

The record establishes, however, that Nichols had knowledge of the invoices since he supervised the repairs, received a copy of the invoice sent to Dixon and had been engaged in this field of employment for many years. The court’s refusal to permit Nichols to testify on reasonableness was not because Nichols was not an expert, but rather that he had been in the courtroom and had no knowledge of the amount of the bill except through Dixon’s testimony.

This Court has held that a witness may testify as to value based on experience. Dyer v. Hobert, 150 Miss. 857, 117 So. 244 (1928). Nichols’ proffered testimony was that he had twenty years experience in repairing large engines, was familiar with repairs similar to those on the gin in question and had received a copy of the bill sent to the gin company. From this we are of the opinion he was qualified to give testimony as to the reasonableness of the bill introduced into evidence and that the court erred in not permitting his testimony.

REVERSED AND REMANDED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

DAN M. LEE, J., takes no part.

      . See both Miss.Unif.Cir.Ct.R. 3.04 and Fed.R. Evid. 615 for a statement of the rule regarding exclusion of witnesses from the courtroom during trial.


author: MADDOX, Justice. MADDOX, Justice.

text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF HAMILTON, Alabama, a corporation v. Jerry A. CAUDLE and Carolyn Caudle.
    81-384.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    As Modified on Denial of Rehearing Dec. 22, 1982.
    Rehearing Denied Jan. 21, 1983.
    John Self, Hamilton, for appellant.
    William H. Atkinson of Fite, Davis & Atkinson, Hamilton, for appellees.
   MADDOX, Justice.

The central question presented by this appeal is whether a statement made by a lender’s agent to prospective home buyers that they had been approved for an FHA 235 loan, when they, in fact, had not been approved, is actionable, and whether a verdict of $22,500 rendered by the jury was proper and supported by the evidence.

Jerry and Carolyn Caudle, plaintiffs below, are husband and wife. In June of 1980, the appellees, desiring to purchase a house, went to appellant First Federal’s place of business to inquire about a loan. The Caudles discussed the details of a home loan with Mr. Self of First Federal but learned that because of the high interest rates they could not afford the loan payments. The subject of an FHA (Federal Housing Administration) 235 loan was discussed. A 235 loan allows low income borrowers who qualify to have a portion of the interest on their home construction loan subsidized by the federal government. After a brief explanation of the FHA 235 loan program, Mr. Self agreed to process the papers to determine if the Caudles met the loan qualifications. This was the first FHA 235 loan First Federal had ever processed.

Several days later, on June 16, 1980, the Caudles met with their contractor at First Federal, where appellant First Federal prepared a contract between the contractor and the Caudles. The contractor, however, was instructed to delay construction until the loan was approved because the Caudles, without the loan, lacked the funds to pay him. That same day, the Caudles signed other papers, including one granting First Federal permission to verify Mr. Caudle’s income with his employer. Shortly after June 23, 1980, Mr. Caudle’s employer verified his 1979 income to First Federal as $15,477.24. Mrs. Caudle was not employed during the time the loan application was pending.

From the time of making the loan application until September 1980, Jerry Caudle phoned First Federal once a week to inquire about the status of the loan. Finally, during the middle of September 1980, Mr. Cau-dle phoned First Federal and talked with Mrs. Robertson. He informed her that if he had not heard from First Federal concerning the loan in two weeks, to forget about it. Mr. Caudle also phoned the contractor and reiterated what he had told Mrs. Robertson. Two weeks later, Mrs. Robertson phoned and Mr. Caudle spoke with her in a return call. She told him that “if [the Caudles] would, to wait on this loan, if [they] could qualify for it, it would be worth it.” Construction on the house had not yet commenced.

In the early part of October, 1980, Mrs. Caudle testified that Mrs. Robertson of First Federal called her on the telephone to inform her that the loan had been approved and they could commence building the house. The contractor testified that Mrs. Robertson also telephoned him and told him that construction on the house could begin. (Mrs. Robertson testified that she did not recall specifically telling either Mrs. Caudle or the contractor to begin building the house; only that the loan was “conditionally approved.”) Shortly thereafter, the contractor picked up the plans and specifications from First Federal and was given a telephone number in Birmingham to call when he was ready for footing inspection. Construction began around the middle of October 1980, and the house was completed and ready for final inspection on December 12, 1980. Some minor problems were corrected and final approval was given by the inspector around January 1, 1981. Only after the final inspection did the contractor learn of any problem with the Caudles’ obtaining an FHA 235 loan.

In a telephone conversation with Mrs. Robertson and Mr. Self of First Federal around December 8, 1980, the Caudles first learned that their loan had not been approved. The apparent reason for the disapproval of the Caudles’ loan application, as stated in December, was the purchase of a new car. Later, in February 1981, the Cau-dles were told they did not qualify for a 235 loan because Mr. Caudle made too much money in 1980. Unable to pay the contractor for the house, the Caudles were forced to obtain a 30-year Veteran’s Administration (VA) loan at 14V2% interest with monthly payments of $436.10.

At the trial, Mr. Charles Baker, a mortgage loan officer for Department of Housing and Urban Development (HUD), testified that an application for a 235 loan is submitted to HUD in a two-part process. A conditional commitment is issued approving the house plans, and after this, HUD evaluates the income eligibility of the borrower. Here, the conditional commitment was issued on October 8, 1980. The information from which HUD could determine the income eligibility of the Caudles was first submitted by First Federal on January 14,1981. Thus, no final determination could have been made by HUD as to the Caudles’ eligibility for a 235 loan until after January 14, 1981. An amended income verification form was submitted in February 1981, showing Mr. Caudle’s complete 1980 earnings.

The complaint, which contained seven counts, sought recovery upon the basis of negligence, wantonness, and fraud or willful misrepresentation, for the processing, approval and false statements made concerning an FHA loan application. The complaint sought compensatory damages of $25,000 and punitive damages of $61,400. The case was tried before a jury and at the close of plaintiff’s evidence, defendant filed a motion for a directed verdict. The motion was denied. At the conclusion of all evidence, defendant refiled its motion for directed verdict, which was again denied by the court. The trial court instructed the jury on the law relative to counts 1, 2, 5 and 6, which alleged negligence and wantonness. The jury returned a general verdict. Finding that each of these submitted counts is amply supported by credible evidence, we affirm the judgment as against a failure of proof challenge. Aspinwall v. Gowens, 405 So.2d 134, 136 (Ala.1981).

I

Appellant First Federal contends that there was never any consideration paid for a loan commitment and that because the parties never executed a written agreement with regard to appellant’s aiding the Cau-dles in this respect, any sort of parol agreement the parties may have had was void because of the requirements of the Statute of Frauds. The applicable provision of the Alabama Statute of Frauds as cited by appellant is Ala.Code 1975, § 8-9^2(5), which reads:

“Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, [is void] unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.”

The Court finds no merit in First Federal’s argument. First Federal agreed to process and handle the loan application for the Caudles. Irrespective of the fact that First Federal did not receive any consideration at the time the forms were filled out and filed with HUD, First Federal would have nevertheless received, after the loan was approved, an origination fee of 1% of the total mortgage amount for making the loan and also benefited as the lending institution making a government subsidized loan at the prevailing mortgage interest rates.

II

First Federal’s argument that the verdict cannot be sustained because it was under no duty to service a 235 loan is also without merit. Although First Federal was under no duty to help procure a federally subsidized loan for the Caudles, once it voluntarily agreed to assist the Caudles, it was required to act with due care. McGaha v. Steadman, 410 So.2d 420, 421 (Ala.Civ.App.1981); Dailey v. City of Birmingham, 378 So.2d 728, 729 (Ala.1979). The jury could have found from the testimony of Mrs. Cau-dle and the contractor that First Federal’s employee told both Mrs. Caudle and the contractor that the FHA 235 loan had been approved and that construction of the Cau-dle home could commence; and the jury could have further found that it was clear or should have been clear to First Federal’s employee, at that time, that the commitment received from HUD was merely “conditional” and not final. We recognize that First Federal’s employee testified that she told both the contractor and Mrs. Caudle that the commitment was only conditional; however, that conflict in the testimony was resolved by the jury in the Caudles’ favor.

The evidence was sufficient from which the jury could have concluded that the Caudles’ desire to build a home was predicated on their receiving a low interest loan which they could afford. Testimony indicated that had the Caudles obtained an FHA 235 loan, monthly payments would have been $197. The jury could have found that the Caudles were forced to take a loan at the prevailing rate of interest and monthly payments of $436.10, when First Federal informed them, after the house was completed, that the FHA loan had not been approved. Consequently, the general verdict of $22,500 delivered by the jury is supported by the facts of this case. Therefore, the judgment is affirmed.

AFFIRMED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.

ON APPLICATION FOR REHEARING

MADDOX, Justice.

ORIGINAL OPINION MODIFIED: APPLICATION FOR REHEARING OVERRULED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.