author: DAN M. LEE, Justice, for the Court: SUGG, Presiding Justice, PATTERSON, Chief Justice,

text:
    Stephen ROBINSON v. STATE of Mississippi.
    No. 53257.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Rehearing Denied July 28, 1982.
    Brewer, Deaton, Evans & Bowman, Billy B. Bowman, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.
   DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Leflore County wherein Stephen Robinson, defendant/appellant, was indicted, tried and convicted for the September 16, 1980, burglary of Goldberg’s Store located in Greenwood, Mississippi. Upon conviction, Robinson was sentenced to serve five years in the custody of the Mississippi Department of Corrections. Aggrieved of his conviction, Robinson has appealed to this Court and assigns four errors in the trial below.

1. The verdict of the jury was contrary to the overwhelming weight of testimony and the law.

2. The court erred in not entering a directed verdict for the appellant.

3. The court erred in denying the appellant’s motion to suppress, thus allowing the state to introduce into evidence the three pairs of shoes taken from the display window of Goldberg’s Shoe Store.

4. The court erred in giving, over the appellant’s objections, the state’s requested Instruction No. 2.

Goldberg’s Shoe Store, located in Greenwood, Mississippi, was burglarized sometime between 11:05 p. m. and 12:39 a. m. on September 15 and 16,1980. A large display window was broken out, apparently with a piece of concrete, and eight pairs of shoes removed therefrom. The owner reported the shoes taken from the store were manufactured by Pierre Cardin and Florsheim.

Thomas G. Futral, detective sergeant of the Greenwood Police Department, discovered the burglary at 12:39 a. m. He was unable to obtain fingerprints from the window itself or the item used to break the glass. Futral remained on the scene for twenty or twenty-five minutes at which time he was called to investigate an automobile accident at Mabeline and Third Avenue. When Futral arrived on the scene of the accident at approximately 1:00 a. m., appellant, who stated he was driving the 1973 Monte Carlo which struck the rear of a parked pickup truck, was boisterous and smelled of alcohol. Officers investigating the accident arrested appellant for public drunkenness and summoned a wrecker to remove the Monte Carlo which was rendered inoperable by the collision. Futral, who was taking pictures of the accident, began to inventory the contents of the automobile, which was standard procedure used by the police department to avoid lawsuits. When the trunk was opened, three new pairs of shoes were discovered therein, corresponding to the brands that had been reportedly taken in the Goldberg burglary. Appellant was then advised he was also being arrested for burglary. Subsequent investigations revealed the shoes were the same as those taken in the Goldberg burglary-

Appellant denied any participation in or knowledge of the burglary. According to him, he borrowed his brother’s automobile after getting off work around 6:00 or 7:00 p. m. He began drinking and riding around. Around 10:00 p. m., he picked up Milton Johnson, a cousin, rode around about forty-five minutes and then went to the Soul Train Lounge where he stayed for one and half or two hours. Around 1:00 a. m. defendant left the lounge to take Sylvester Hodges home and then returned to the lounge and left with Milton Johnson, who was injured in the accident. Johnson asserted it was around 11:00 p. m. when defendant took Hodges home and he was gone for about ten minutes. Hodges stated it was about 12:30 a. m. Both Johnson, a co-indictee, and Hodges denied any knowledge of or participation in the burglary.

The jury found appellant guilty as charged, whereupon he was sentenced to a term of five years in the penitentiary.

I. Did the trial court err in overruling defendant’s motion for a directed verdict at the close of the state’s case and was the verdict of the jury contrary to the overwhelming weight of the evidence?

Although appellant complains of the overruling of his motion for a directed verdict, he waived any error thereof by adducing evidence in his own behalf. In Tubbs v. State, 402 So.2d 830 (Miss.1981), this Court stated:

At the conclusion of the State’s case, Tubbs moved to exclude the evidence and direct a verdict of acquittal as to the underlying charge of robbery, and assigns as error the action of the trial judge in overruling his motion. After the motion was overruled Tubbs presented evidence in an attempt to establish an alibi defense and is thereby precluded from raising any issue on appeal with regard to the denial of his motion for a directed verdict. Lucas v. State, 381 So.2d 140 (Miss.1980); Watts v. State, 317 So.2d 715 (Miss.1975); Hankins v. State, 288 So.2d 866 (Miss.1975). (402 So.2d at 835)

As to appellant’s contention concerning the sufficiency of the evidence, he avers that the jury completely ignored the overwhelming testimony of his witnesses concerning his presence except for a brief period and therefore convicted him solely on the inference arising from possession of recently-stolen property. Evidently, appellant overlooks the fact that it was the jury’s prerogative to accept the testimony it deemed to be more trustworthy and reject that it deemed was not. In Tubbs, supra, this Court said:

Tubbs’ defense was an alibi and it is well established that a jury is not under a duty to accept an alibi defense, but must consider all of the testimony in determining the guilt or innocence of an accused. An alibi defense presents a question of fact to be resolved by the jury. In Spikes v. State, 302 So.2d 250 (Miss.1974), we stated:
“The jury was not required to accept this alibi. Its duty was to evaluate the testimony of the witnesses for the State and defendant, and to determine whether the evidence showed beyond a reasonable doubt that appellant was guilty. The State’s evidence was contradictory of that of appellant concerning an alibi. It was a jury issue. Newton v. State, 1956, 229 Miss. 267, 90 So.2d 375. (Kelly v. State, 239 Miss. 683, 690, 124 So.2d 840, 842 (1960). (302 So.2d at 251)”
Accord, Johnson v. State, 359 So.2d 1371 (Miss.1978).
(402 So.2d at 834-35)

In the case at bar it is evident that the jury rejected the testimony of appellant’s two witnesses. Milton Johnson, who was on parole at the time of the incident, was certainly questionable, being related to the defendant, and also charged with the same crime. Sylvester Hodges, with whom appellant left the Soul Train Lounge for a short period of time, was evidently the only other person who could have participated in the crime that night and he certainly wasn’t going to implicate himself. Furthermore, appellant never asserted anyone else had control over the automobile besides himself from the time he borrowed the same until the shoes were subsequently discovered therein.

In Gray v. State, 387 So.2d 101 (Miss.1980), this Court stated:

In Carroll v. State, 196 So.2d 878 (Miss.1967), this Court said:
“In reviewing the sufficiency of the evidence to support the verdict, this Court must accept as having been established all that was proved by the evidence, as well as all that such evidence reasonably tended to prove, together with all reasonáble inferences to be drawn therefrom, favorable to the theory of the prosecution.
“The jury’s verdict had the effect of resolving all conflicts in the evidence against appellant, and the findings of the jury, as the trier of facts, are conclusive upon this Court. (196 So.2d at 883).”
(387 So.2d at 103)

Accepting all that was proved by the state’s evidence, as well as that such evidence reasonably tended to prove, together with all reasonable inferences to be drawn therefrom, this Court finds the evidence was sufficient to support the verdict of the jury.

II. Did the trial court err in failing to suppress the shoes taken from the trunk of the automobile appellant was driving?

At the hearing on the motion to suppress, it was established that the Greenwood Police Department generally adhered to an unwritten policy of inventorying the contents of automobiles where the driver of the same was arrested. The inventory was a method whereby the police department sought to avoid lawsuits involving items which were subsequently alleged missing from automobiles taken into custody by the police department. Moreover, the importance of the inventory was escalated by the fact that the cars were towed to private lots due to the fact that the city did not have a garage or lot to house impounded cars.

The inventory of property lawfully seized falls into a different category from that of an automobile search incident to a lawful arrest or based on probable cause that the vehicle is being used to transport contraband. Jackson v. State, 261 So.2d 126 (Miss.1972). Here it was undisputed that the defendant was not suspected of any crime before the inventory was conducted and the articles discovered therein. In Jackson v. State, 243 So.2d 396 (Miss.1970), this Court discussed inventory searches:

Although not necessary to this opinion, the question will doubtless be raised on retrial that probable cause did not exist for the search of the appellant’s car. After consideration, we think the trial court correctly held that the boxes and their contents should not be excluded from evidence as the result of the search. We are of the opinion the car was inventoried in accord with lawful police practices. In Wright v. State, 236 So.2d 408, 412 (Miss.1970), we held:
“ * * * However, we do not here pass upon whether or not it is ordinarily the official duty of an officer to preserve the property of a person arrested — see Toliver v. State, 133 Miss. 789, 98 So. 342 (1923) — although it may be said that the trend of authorities is moving in that direction — see 32 A.L.R. 685 (1924). It is, nevertheless, the practice of police officers to inventory the personal belongings taken from a prisoner and to put them in a place for safekeeping. This is usually done in the presence of the prisoner and a witness so that the prisoner may not later contend that his money and other belongings were confiscated by the officers.
“The duty of the officers to search the person of the defendant in the instant case and the right of the officers to inventory and keep the personal effects of the prisoner was proper under the facts here shown.”
See also Gordon v. State, 222 So.2d 141, 144 (Miss.1969), where we stated:
“ * * * Since it was the duty of the officers to hold the automobile as evidence until the participants could be indicted and tried, it would be unreasonable to hold that for their own protection the officers did not have the duty to search the automobile. They were responsible for all the contents of the car and in order to properly account for such contents they had to inventory and preserve them. Appellant urges that the officers could have procured a search warrant and searched the car after it was moved to the patrol headquarters, however, that is not the test. The test is whether the search was reasonable. As a means of precaution it is always better for the officers to procure a search warrant for the search after the arrest has been effected and the vehicle moved from the scene of the arrest, but under the facts and circumstances of this case a search without a search warrant was reasonable. * * * "
See also Godbee v. State, 224 So.2d 441 (Fla.App.1969), a well-reasoned opinion from which we quote with approval the following:
“ * * * The reasonableness of any search without a warrant is measured from the standpoint of the conduct of the searchers. If their conduct is in some way reprehensible; or if they precipitate a search and are motivated therein solely by a desire to “hunt” for incriminating evidence; or if they do so without any plausible explanation or justification; the invasion is an unreasonable one. Here the tests have been met, and there is no evidence in this record from which it can be said that the officers did not act in good faith and in the prudent discharge of their official duties. There [was] ample justification for taking the car into custody in the first place, and reasonable cause to inventory it. The trial court was correct in denying the motion to suppress. (224 So.2d at 443.)”
Accord Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). We conclude that the inventory of the appellant’s automobile was reasonable in its inception, a proper police practice, and that there was probable cause for the ensuing search subsequent to the discovery of the substance charged to be marijuana.
(243 So.2d at 398-99) (emphasis added.)

Officer Futral conducted an inventory search of the appellant’s borrowed automobile shortly after his arrest by another officer for public drunkenness while the vehicle was still located at the scene of the accident. Officer Futral referred to it as an inventory search contemporaneous with allowing the wrecker service to remove the damaged automobile to a parking lot operated by the wrecker service. Officer Futral inventoried the interior of the automobile and found nothing except two or three eight-track tapes and then opened the trunk and found two pairs of new shoes lying in the trunk in plain view, which were later identified to be the shoes taken from Goldberg’s store in a burglary that was committed no more than an hour and thirty-four minutes prior thereto. Officer Futral was called to the scene of the accident directly from the investigation of the Goldberg burglary, primarily because he had possession of the camera that was used by the Greenwood Police Department for taking pictures in accidents and for other purposes. Futral had no idea there was any connection between the 1973 Monte Carlo involved in the accident and the Goldberg burglary. The inventory conducted by Futral and other officers was a routine procedure followed by the Greenwood Police Department since 1968 and no wise carried out to circumvent any search requirements of the Fourth Amendment. This was established by Officer Futral and Chief of Police James Stevens of Greenville, Mississippi. In ruling upon the motion to suppress, the trial judge stated:

The Court is of the opinion that the police acted properly in this case; that had they done anything other than what they did, that is, open the car to try to find if any valuables were there, they would have been neglecting their duty.
What impresses the Court most about this is the fact that there was absolutely no apprehension on the part of the police that these two people who were in this wreck had anything to do with any crime, and that the reason for the opening of the trunk was non-crime related in any way to the incident for which they are now charged or for any other crime, to the Court’s knowledge, and certainly not from what I’ve heard of the testimony.

Appellant contends that opening the trunk without a warrant was a violation of his Fourth Amendment rights. The appel-lee relies upon the rule announced in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and contends that the police officers here were making a routine inventory of the contents of the vehicle, a reasonable procedure not a violation of the Fourth Amendment. The accused’s automobile in Opperman had been impounded for multiple parking violations and the police, following standard procedure, inventoried the contents of the car. In so doing, they discovered marijuana in the glove compartment. Opperman was subsequently arrested and convicted for possession of the contraband. His motion to suppress the evidence from the warrant-less inventory was denied. The State Supreme Court reversed on the ground that the evidence had been obtained in violation of the Fourth Amendment. In reversing that decision, the United States Supreme Court held that the police procedures followed there did not involve an unreasonable search in violation of the Fourth Amendment, that the expectation of privacy in one’s automobile is significantly less than that in one’s own home or office. The Court further held that when vehicles are impounded, police routinely follow caretak-ing procedures by securing an inventory of the car’s contents, and such procedures are reasonable under the Fourth Amendment. The United States Supreme Court in Opperman, supra, said:

When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in- response to three distinct needs: the protection of the owner’s property while it remains in police custody. United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, supra [386 U.S.] at 61-62, 87 S.Ct. 788 [at 790-791] 17 L.Ed.2d 730. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, m194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.
These caretaking procedures have almost uniformly been upheld by the state courts, which by virtue of the localized nature of traffic regulation have had considerable occasion to deal with the issue. Applying the Fourth Amendment standard of “reasonableness,” the state courts have overwhelmingly concluded that, even if an inventory is characterized as a “search,” the intrusion is constitutionally permissible. See, e.g., City of St. Paul v. Myles, 298 Minn. 298, 300-301, 218 N.W.2d 697, 699 (1974); State v. Tully, 166 Conn. 126, 136, 348 A.2d 603, 609 (1974); People v. Trusty, 183 Colo. 291, 296-297, 516 P.2d 423, 425-426 (1973); People v. Sullivan, 29 N.Y.2d 69, 73 [323 N.Y.S.2d 945, 947-49] 272 N.E.2d 464, 466 (1971); Cabbler v. Commonwealth, supra, Warrix v. State, supra, State v. Wallen, 185 Neb. 44, 173 N.W.2d 372, cert. denied, 399 U.S. 912, 90 S.Ct. 2211, 26 L.Ed.2d 568 (1970); State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968); State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968); People v. Clark, 32 Ill.App.3d 898, 336 N.E.2d 892 (1975); State v. Achter, 512 S.W.2d 894 (Mo.App.1974); Bennett v. State, 507 P.2d 1252 (Okl.Cr.App.1973); People v. Willis, 46 Mich.App. 436, 208 N.W.2d 204 (1973); State v. All, 17 N.C.App. 284, 193 S.E.2d 770, cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973); Godbee v. State, 224 So.2d 441 (Fla.Dist.Ct.App.1969). Even the seminal state decision relied on by the South Dakota Supreme Court in reaching the contrary result, Mozzetti v. Superior Court, 4 Cal.3d 699 [94 Cal.Rptr. 412], 484 P.2d 84 (1971), expressly approved police caretaking activities resulting in the securing of property within the officer’s plain view.
(428 U.S. at 369-371, 96 S.Ct. at 3097-3098, 49 L.Ed.2d at 1005-06)

In a later case, United States v. Edwards, 577 F.2d 883 (5th Cir. 1978), the Fifth Circuit Court of Appeals, citing Opperman, supra, stated:

Our reading of Opperman, however, has led us to conclude that an inventory search may not be unlimited in scope. Once again, we are guided by the standard of reasonableness. Only so long as the scope of the search is reasonable, taking into consideration the three interests to be protected by the inventory, will it be held to be a constitutionally permissible intrusion. The complete dismantling of an automobile, or parts thereof, for example, would not withstand constitutional scrutiny because such action would not reasonably serve to promote or further the interests which justify an inventory search. Rather, the three interests set forth in Opperman can be adequately protected if the inventory search is limited in scope to those places within the interior or trunk of an automobile where, under the particular circumstances of the case, property of the owner or occupant can reasonably be expected to be found. The standard we advocate is necessarily flexible and is to be applied on a case by case basis, but it nevertheless adheres to the constitutional mandate that only unreasonable searches and seizures are prohibited.
The potential abuse inherent in the in-ventorial process, and the concomitant need to limit its scope, was recognized in this Circuit prior to sanction of the inventory search by our highest court in Opperman. We made the following observations in United States v. Gravitt, 484 F.2d 375, 380-81 (5th Cir. 1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974):
“We are conscious, too, of the possibility that the police, in some circumstances warranting some limited form of inventory search, may often conduct searches which range beyond what is required by any legitimate police need .. . But we are confident that here, as in other contexts, reviewing courts will be fully capable of assuring that the scope of the intrusions will be tailored to the specific public interests which lie at the root of the finding that the intrusions are reasonable.”
We now turn to the facts of this case to determine whether the inventory search was reasonable. There can be no doubt that the search was thorough. The record reveals that the officers searched the glove compartment, the trunk, under the seats, and even the crevices between the seats. However, we refuse to necessarily equate thoroughness with unreasonableness. The reasonableness of the search of the automobile floor, under a loose “carpet flap” in particular, is the issue with which we are confronted today.
The starting point of our analysis is that the police in conducting an inventory search, may ordinarily inspect the glove compartment, the trunk, on top of the seats as well as under the front seats, and the floor of the automobile. An inspection of these areas is reasonable because these are common locations in or on which it is reasonably to be expected that the owner or occupant of an automobile may place items of personalty. The intrusion, although serious, is justified by the need to protect the police from claims. This is to say no more than in the typical case it is not unreasonable for the police to search such places while conducting an inventory, (emphasis added.) (577 F.2d at 893-94)

Opperman has been further construed and applied by the Supreme Court of Iowa in State v. Roth, 305 N.W.2d 501 (Iowa 1981), where the Court held that a warrant-less inventory of an automobile may extend into the vehicle’s locked trunk, and even into a closed paper bag inside the trunk. In Roth, supra, the Court stated:

Differing from the probable cause and personal luggage cases, the impounded motor vehicle situation presents a practical problem for law officers. As in this case, officers must frequently remove occupants from vehicles at night on criminal charges. The vehicles can hardly be left unattended; they may be broken into or stripped. If the officers call third parties to tow in the vehicles, they run the risk that contents of the passenger and trunk compartments may disappear in the process, or even after the vehicles are stored. They also run the risk of claims that they themselves stole items from the compartments. The officers thus have the problem of how to protect themselves and their governmental units from civil liability. The former days are no more when the officers and their governmental units could interpose an absolute defense simply from the performance of a governmental function. See Franks v. Kohl, 286 N.W.2d 663, 666-71 (Iowa 1979) (liability of public officers); chs. 25A, 613A, The Code (governmental tort liability).
The United States Supreme Court took a practical approach to this problem in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), and South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). In both cases the Court brought out the practical problems we have described and found the particular searches to be reasonable under the circumstances. Dombrowski involved a variation of the situation; the officer believed the vehicle might contain a handgun which some third person might obtain and use. Opperman involved an inventory of the contents of a car which was twice ticketed for overparking within a single period. An officer observed a watch and other articles in the car. He thereupon had the car unlocked, and he inventoried its contents. In so doing, the officer came across marijuana in the unlocked glove compartment. The language used by the Court is quite broad, at least for the case in which officers follow standard procedures in taking inventory of the contents of impounded vehicles. Thus see id. at 373, 96 S.Ct. at 3099, 49 L.Ed.2d at 1007: “In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents.”
Justice Powell was one of the five-justice majority in Opperman. He filed a concurring opinion. We do not understand, however, that he questioned the Court’s opinion. Rather, he gave additional reasons for the result. His introductory statement was this: “While I join the opinion of the Court, I add this opinion to express additional views as to why the search conducted in this case is valid under the Fourth and Fourteenth Amendments.” Id. at 376, 96 S.Ct. at 3101, 49 L.Ed.2d at 1009. We thus have an opinion joined in by five justices upholding an inventory search of an impounded motor vehicle.
(305 N.W.2d at 504-505)

This Court used the rationale of Opper-man in affirming a thirty-year sentence for armed robbery in the very recent decision of Florence v. State, 397 So.2d 1105 (Miss.1981).

In view of the facts and circumstances in the present case, the Court finds the trial judge properly denied the motion to suppress the shoes recovered from the automobile defendant was driving because it was the officer’s duty to protect any valuables within the automobile at the time it was under the control of the Greenwood Police Department.

The remaining question is, did the trial court err in granting the state’s Instruction No. 2, which is set out in full as follows:

The Court instructs the jury that the possession of property recently stolen is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt.

The language that was contained in this instruction is the same that was interpreted and spelled out in Hall v. State, infra, and Fletcher v. State, infra, and was discussed by this Court when it condemned a much more lengthy instruction than was approved in Hall and Fletcher. We quote from Harper v. State, 355 So.2d 314 (Miss.1978), wherein this Court stated:

This instruction as written was objectionable for several reasons. It certainly is not in keeping with the approved instructions set out in Hall v. State, 279 So.2d 915 (Miss.1973) where we stated:
“An instruction which correctly states the principles of law applicable to cases involving possession of recently stolen property is set forth in Fletcher v. State, 168 Miss. 361, 151 So. 477 (1933), the instruction being as follows:
“... ‘The Court instructs the jury that the possession of property recently stolen is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt of larceny. (168 Miss. at 365, 151 So. at 478.’
“In proper cases the instruction may be given as approved in Fletcher, but no attempt should be made to enlarge the scope of the instruction or to experiment with a change in language. (279 So.2d at 916).”
The purpose of setting out the foregoing form of instruction was for the guidance of the trial judges and those prosecuting for the state. While Hall was a larceny case, the same type of instruction applies to a crime involving a charge of burglary which is based upon possession of recently stolen property taken in the burglary. The instruction must be amended to encompass the charge of burglary instead of larceny. The whole purpose of the Hall admonition was to inform the trial judges and district attorneys that the instruction should inform the jury that the possession of property recently stolen is only a circumstance to be considered by the jury and in the absence of reasonable explanation the jury may infer guilt of burglary. Under the circumstances of this case the giving of the instruction complained of was reversible error.

(355 So.2d at 316) (emphasis added.)

Defendant argues the instruction was improper because it allowed the jury to infer guilt of the burglary while mere possession of recently stolen property raises no inference of a burglarious breaking and entering, which is an essential element of the crime. One fallacy in defendant’s argument is that it overlooks the well-settled proposition that instructions must be read together and considered as a whole. Cowan v. State, 399 So.2d 1346 (Miss.1981). Appellant would have us overlook the fact that the appellant sought and obtained Instructions Nos. D-11 and D-13. Instruction D-11 is as follows:

The defendant, Stephen Robinson, has been charged by an indictment with the crime of burglary by breaking and entering Goldberg’s Department Store, 501 Howard Street, Greenwood, Mississippi, in which goods and merchandise were kept for sale, with the intent to steal said goods and merchandise.
If you find from the evidence in this case beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that: (1) Goldberg’s Department Store, 501 Howard Street, Greenwood, Mississippi, was the property of Ervin Goldberg, and (2) defendant broke and entered the department store by throwing a brick through a plate glass window, and (3) shoes were kept there for sale and use, and (4) defendant intended to steal or carry away the shoes, which is a felony under the laws of Mississippi, then you shall find the defendant guilty of burglary-
If the State has failed to prove any one or more of these elements beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence, then you shall find the defendant not guilty of burglary, (emphasis added.)

Instruction D-13 goes further and states the following:

The Court instructs the Jury that you cannot convict this defendant unless you believe beyond a reasonable doubt and to a moral certainty that Stephen Robinson actually broke and entered, with the intent to steal, a certain building commonly known, called and being Goldberg’s Department Store, the property of Ervin Goldberg at 501 Howard Street, Greenwood, Mississippi, or that he planned or assisted in or abetted the breaking thereof, and under no other state of facts can you convict this defendant of burglary. (emphasis added.)

These instructions, when considered as a whole, would seem to cure the problem of which appellant complains as to what the jury must find regarding the intent of breaking and entering to commit the crime of burglary which was the charge in this case.

It is further noted that Instruction S-l, as given by the court, deals with the question also and is quoted in full as follows:

The Court instructs the jury that if you believe from the evidence beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent (sic) that the Defendant, Stephen Robinson, did unlawfully, feloniously, wilfully and burglariously break and enter Gold berg’s Shoe Store, owned by Ervin Goldberg, in which building goods, wares, chattels, merchandise and other things of value, the property of Ervin Goldberg, were kept for use or sale, with the felonious intent to take, steal and carry away said goods, wares, chattels, merchandise or other things of value kept in said building, then it is your sworn duty to find the Defendant, Stephen Robinson, guilty as charged, (emphasis added.)

In disposing of a similar question before this Court in 1981, Cowan v. State, supra, this Court said:

Although appellants shoot with a scatter-barrel gun under this assignment of error and do not draw a bead on any particular instruction, the gist of their argument seems to be that nowhere in the instructions was there a statement that the culpable negligence of the appellants, if any, must be the proximate cause of the fatal collision.
If this be the appellants’ criticism of the instructions, the answer is that instructions S-1 (as to Fader), and S-3 (as to Cowan) and appellants’ own instructions (D-10 as to Cowan) and (D-29 as to Fader), inform the jury in very clear and positive terms that the evidence must show beyond a reasonable doubt that the fatal collision was the direct result of the culpable negligence of the defendants before a verdict of guilty could be returned against them, and that their culpable negligence must have been the proximate cause of the death of Partee DePriest.
This Court has repeatedly held that instructions must be read and considered as a whole and that when the jury is properly instructed considering all the instructions there is no error. Hutchinson v. State, 391 So.2d 637 (Miss.1980).
(399 So.2d at 1350)

Instruction No. 2, when read together with Instructions Nos. D-11, D-13 and S-1 correctly stated the applicable law and this assignment of error is without merit.

For the reasons stated, the conviction and sentence of Stephen Robinson are affirmed.

AFFIRMED.

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

ON PETITION FOR REHEARING

En Banc.

SUGG, Presiding Justice,

for the Court:

On Petition For Rehearing appellant argues that Instruction No. 2 as given by the court violates the due process requirement of the United States Constitution.

The burglary of Goldberg’s Shoe Store was discovered by an officer at 12:39 a. m. and was accomplished by breaking a plate glass window in the store. Eight pairs of shoes were removed from a display inside the window of the store and three pairs of shoes were found in the possession of appellant shortly after discovery of the burglary. While investigating the burglary, Officer Futral was called to the scene of an accident 15 to 18 blocks from Goldberg’s Shoe Store. Appellant had been involved in a collision between his automobile and a pickup truck. Officer Futral and other officers investigating the collision inventoried the contents of the automobile before permitting it to be towed away. The keys were removed from the ignition, the trunk of the appellant’s automobile was opened, and three pairs of shoes which had been stolen from Goldberg’s Shoe Store were in the trunk of the automobile. Appellant testified in his own defense that he had been in possession of the automobile since 6:00 or 7:00 p. m. on the previous day and that he and two other persons had been in the automobile but had not been near and had not burglarized Goldberg’s Shoe Store.

Beginning with Harris v. State, 61 Miss. 304 (1883) and followed in six cases, we held that, in burglary cases, the State may obtain an instruction that the possession of property recently stolen is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt of burglary.

Appellant relies heavily on State v. Searle, 339 So.2d 1194 (La.1976) in support of his argument that the instruction as given by the court violated due process. Searle was charged with burglary and on petition for rehearing the Louisiana Court noted that there was little, if any, evidence to explain how the property was removed from its rightful location. The case before us is factually distinguishable from Searle because in our case the fact of the burglary was proved beyond any reasonable doubt with no evidence to the contrary. La.R.S. 15:432 provides, “A legal presumption relieves him in whose favor it exists from the necessity of any proof.” According to the Louisiana court, one of the traditional and common sense presumptions required by the statute is “the person in the unexplained possession of property recently stolen is the thief.” The Louisiana court reversed and remanded for a new trial relying on Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). In Barnes the district judge instructed the jury that “Possession of recently stolen property, if not satisfactorily explained is ordinarily a circumstance from which you can reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.” Barnes was convicted on two counts of possession of U. S. Treasury checks stolen from the mails knowing them to be stolen, two counts of forging the checks, and two counts of uttering the checks, knowing the endorsements to be forged. The United States Supreme Court affirmed and stated:

We begin our consideration of the challenged jury instruction with a review of four recent decisions which have considered the validity under the Due Process Clause of criminal law presumptions and inferences. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965).
In United States v. Gainey, supra, the Court sustained the constitutionality of an instruction tracking a statute which authorized the jury to infer from defendant’s unexplained presence at an illegal still that he was carrying on “the business of a distiller or rectifier without having given bond as required by law.” Relying on the holding of Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1943), that there must be a “rational connection between the fact proved and the ultimate fact presumed,” the Court upheld the inference on the basis of comprehensive nature of the “carrying on” offense and the common knowledge that illegal stills are secluded, secret operations. The following Term the Court determined, however, that presence at an illegal still could not support the inference that the defendant was in possession, custody, or control of the still, a narrower offense. “Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt — ‘the inference of the one from proof of the other is arbitrary . . . . ’ Tot v. United States, 319 U.S. 463, 467 [63 S.Ct. 1241, 1245, 87 L.Ed. 1519].” United States v. Romano, supra, 382 U.S. at 141, 86 S.Ct. at 282, 15 L.Ed.2d 210.
Three and one-half years after Romano, the Court in Leary v. United States, supra, considered a challenge to a statutory inference that possession of marihuana, unless satisfactorily explained, was sufficient to prove that the defendant knew that the marihuana had been illegally imported into the United States. The Court concluded that in view of the significant possibility that any given marihuana was domestically grown and the improbability that a marihuana user would know whether his marihuana was of domestic or imported origin, the inference did not meet the standards set by Tot, Gainey, and Romano. Referring to these three cases, the Leary Court stated that an inference is “irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 395 U.S. at 36 [89 S.Ct. at 1548], 23 L.Ed.2d 57. In a footnote the Court stated that since the challenged inference failed to satisfy the more-likely-than-not standard, it did not have to “reach the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.” Id., at [36] n.64 [89 S.Ct. at 1548 n.64], 23 L.Ed.2d 57.
Finally, in Turner v. United States, supra, decided the year following Leary, the Court considered the constitutionality of instructing the jury that it may infer from possession of heroin and cocaine that the defendant knew these drugs had been illegally imported. The Court noted that Leary reserved the question of whether the more-likely-than-not or the reasonable-doubt standard controlled in criminal cases, but it likewise found no need to resolve that question. It held that the inference with regard to heroin was valid judged by either standard. 396 U.S. at 416 [90 S.Ct. at 652], 24 L.Ed.2d 610. With regard to cocaine, the inference failed to satisfy even the more-likely-than-not standard. Id., at 419 [90 S.Ct. at 653], 24 L.Ed.2d 610.
The teaching of the foregoing cases is not altogether clear. To the extent that the “rational connection,” “more likely than not,” and “reasonable doubt” standards bear ambiguous relationships to one another, the ambiguity is traceable in large part to variations in language and focus rather than to differences of substance. What has been established by the cases, however, is at least this: that if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process.
Common-law inferences, like their statutory counterparts, must satisfy due process standards in light of present-day experience. In the present case the challenged instruction only permitted the inference of guilt from unexplained possession of recently stolen property. The evidence established that petitioner possessed recently stolen Treasury checks payable to persons he did not know, and it provided no plausible explanation for such possession consistent with innocence. On the basis of this evidence alone common sense and experience tell us that petitioner must have known or been aware of the high probability that the checks were stolen. Cf. Turner v. United States, 396 U.S. at 417 [90 S.Ct. at 652], 24 L.Ed.2d 610; Leary v. United States, 395 U.S. at 46 [89 S.Ct. at 1553], 23 L.Ed.2d 57. Such evidence was clearly sufficient to enable the jury to find beyond a reasonable doubt that petitioner knew the checks were stolen. Since the inference thus satisfies the reasonable-doubt standard, the most stringent standard the Court has applied in judging permissive criminal law inferences, we conclude that it satisfies the requirements of due process. (412 U.S. at 841-844; 93 S.Ct. at 2360-2362; 37 L.Ed.2d at 385-387).

In the case at bar, the state proved that Goldberg’s Shoe Store was burglarized, that three pairs of shoes taken in the burglary were in the trunk of appellant’s automobile, and the shoes were seized from appellant’s wrecked automobile 15 to 18 blocks from the scene of the burglary. The evidence was sufficient for a rational juror to infer that it was more-likely-than-not beyond a reasonable doubt that appellant committed the burglary from the fact that he was in possession of shoes taken in the burglary a few blocks away and provided no reasonable explanation for such possession consistent with innocence.

In Engbrecht v. State, we held:

The possession of recently stolen goods is like any other circumstance in evidence, which, if unexplained, would point logically to guilt and from which the jury, as trier of fact, might reasonably infer guilt, if they chose to do so. As reasonable men, jurors must be assumed to attach to circumstances in evidence such significance as human experience has taught they deserve. The unexplained possession of recently stolen goods must be ranked in strength with the proverbial circumstance of the finding of a “trout in the milk” as being a circumstance pointing with great cogency to a particular conclusion. (268 So.2d at 509).

We conclude that the inference submitted to the jury by the instruction accords with due process and the evidence was sufficient to satisfy both the reasonable-doubt and more-likely-than-not standard. Accordingly, the petition for rehearing is denied.

DENIED.

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

PATTERSON, C. J., dissents.

PRATHER, J., takes no part.

PATTERSON, Chief Justice,

dissenting:

I dissent with deference from the majority opinion. It is my belief the facts of this case were not sufficient to grant an “inference without explanation instruction” thereby permitting the jury to find the defendant guilty of burglary by use of inferences to support the essentials of that crime.

It should be observed the indictment was for burglary when it more properly should have been for the unlawful possession of recently stolen property. Miss.Code Ann. § 97-17-69 (1972). Necessarily, however, the essential elements of burglary, Miss. Code Ann. § 97-17-33 (1972), must be proven beyond a reasonable doubt by the state, i.e., breaking and entering with the intent to steal. In my humble judgment the state did not do so.

The burglary occurred sometimes between 11:05 p. m. and 12:39 a. m. when an officer discovered a broken glass in the front of the victim’s building. This officer remained at the burglary scene for some twenty or twenty-five minutes when he was called to investigate an automobile accident approximately 15 to 18 blocks from the burglarized store. The investigation led to the appellant’s arrest for drunkenness and an inventory of his car which disclosed three of the eight pairs of shoes that were taken from the burglarized store.

My concern is that we should not lend this court’s approval to an instruction which permits a jury to return a verdict of guilty without proof of the crime beyond a reasonable doubt.

The questioned instruction, “The court instructs the jury that the possession of property recently stolen is a circumstance which may be considered by the jury and from it, in the absence of a reasonable explanation, the jury may infer guilt.” The appellant’s attorney objected when it was offered for the court’s approval, stating “we object to the giving of that instruction. However, it appears to be the words of the supreme court on that instruction.” The court responded: “Well, the only thing I have wrong with that is even though the Supreme Court has approved it, and it is probably in the Form Book ‘may infer guilty of what’ larceny, of course, is the lesser offense of burglary. Possession of recently stolen goods — does that have — no inference, whatsoever, of breaking. You can’t draw an inference of breaking from the fact that recently stolen goods were possessed. I will give that instruction.” The trial court’s language portrays doubt as to the propriety of the instruction and also that it was granted because of this court’s previous approval of somewhat similar instructions. Unfortunately it overlooked the rule that all instructions must be linked to the evidence in each individual case. This warrants, in my opinion, a review of our cases on burglary convictions based upon an “inference without explanation” instruction.

The first we note is Belote v. State, 36 Miss. 96, 120 (72 Am.Dec. 163) (1858), a larceny conviction, wherein the following instruction was approved, “If the evidence satisfies the jury that Ephriam Strout lost bank bills, and that they, or a part of them, had been found in defendant’s possession shortly after, in the absence of other evidence proving how defendant came into possession, they will find him guilty.” (Emphasis added). Twenty three years later, in Stokes v. State, 58 Miss. 677, 680 (1881), another larceny case, although not expressly overruling Belote, we held as follows:

In Belote’s Case, 36 Miss. 97 [sic] [72 Am.Dec. 163], the presumption was recognized and spoken of as being one of fact, which, it was said, if unexplained, would “stand and warrant a conviction;” and yet an instruction was approved which said to the jury that, if you believe the possession is unexplained, you “will find the accused guilty.” This was equivalent to a command to them to do so and was improper; since it can never be admissible for the court to direct a verdict upon an inference of fact which will only warrant or justify it. The jury should have been told that they might find him guilty, or would be warranted in so doing.
Reversed, and new trial awarded. (Emphasis added).

These cases established the precedent for inference instructions in burglary actions. Perhaps a reference to each will portray some of the vagaries found as well as the precautions this court has suggested in approving them.

In Harris v. State, 61 Miss. 304, 305 (1883), the appellant was convicted on an indictment charging him with burglary and larceny. On appeal, an inference instruction was approved in the following language, “The fourth instruction for the State conforms to the doctrine laid down in Stokes’ Case, 58 Miss. 680, that the possession of recently stolen property is a circumstance from which the jury may infer guilt. This is its substance, though a little differently expressed. It was correct.” Its significance is that the instruction was enlarged to include burglary albeit in conjunction with larceny.

Wiley v. State, 129 Miss. 196, 205, 91 So. 906, 908 (1922), concerned a burglary conviction. It held,

Appellant assigns as error by the trial court the giving of an instruction for the state whereby the jury were charged that possession of stolen goods which had been taken from a burglarized building not satisfactorily explained was prima facie evidence of both the burglary and the larceny. The criticism of the charge is that it told the jury that the possession alone by the appellant of the stolen goods, unexplained, was prima facie evidence of the guilt of the appellant of both the burglary and larceny charged. There was left out of the instruction the qualification that the possession must have been recent after the crime. The criticism of this instruction is well founded. However, the giving of it was entirely harmless to the appellant under the facts of this case, for the reason that in his own testimony he admitted that his possession of the shoes was a recent possession; . . . (Emphasis added).

Although this instruction did not accord with Stokes, inasmuch as it authorized pri-ma facie finding of guilt rather than an inference from which the jury might infer guilt it was nevertheless approved although disapproved because it was not qualified by the word “recent.” Regardless, the court approved an inference instruction on the charge of “burglarizing the storehouse .. . and stealing therefrom one pair of shoes.”

In Wood v. State, 155 Miss. 298, 124 So. 358 (1929), a burglary conviction was appealed. In it, an instruction conforming to that in Harris, was sanctioned although it was a burglary case. The court did state however, that the burglary must be proved by evidence independent of mere possession. In the case subjudice there was adequate proof of the breaking and entering by someone but no evidence of identity apart from the possession of three pairs of shoes.

Millette v. State, 167 Miss. 172, 186, 148 So. 788, 792 (1933), again authorized an inference instruction in a burglary case. It held, “It was not error for the court to grant the instruction to the state that the recent possession of stolen property made a prima facie case of guilt against the appellant in the absence of a reasonable explanation.” The court found the explanation of Mrs. Millette to be of the “man in the moon,” variety and rejected it. We observe the instruction authorized a prima facie finding of guilt if the jury found the explanation unreasonable, again contrary to Stokes and other cases.

More recently in Huddleston v. State, 220 Miss. 292, 296, 70 So.2d 621, 623 (1954), (burglary) the following instruction was granted, “The possession of recently stolen property unexplained raises a presumption of guilt of the person so in possession which presumption may be considered along with all evidence in the case by the jury.” Obviously, this holding overlooked the teaching of Stokes, as well as Matthews v. State, 61 Miss. 155, 156, wherein it was stated, “The most that can be said is that the fact of such possession may and ought to be considered by the jury in determining the question of guilt, and that where no reasonable and satisfactory explanation is given of such possession, the jury may from it infer guilt.” In Huddleston the evidence indicat- . mg appellant’s participation in the burglary was not limited to the proof of possession by the appellant of the recently stolen pistol. Justice Kyle pointed out there was other evidence indicating the defendant’s guilt sufficient to warrant the jury’s finding that the appellant was guilty as charged.

Engbrecht v. State, 268 So.2d 507 (Miss.1972), referred to unexplained possession of recently stolen goods as ranking in strength with the proverbial circumstance of finding a “trout in the milk” as pointing with great cogency to a particular conclusion. Nevertheless, the court qualified this statement by carefully detailing other facts which placed the defendant’s truck, where the stolen articles were found, at the scene of the burglary just thirty minutes prior to the crime’s discovery. There is no such proof in the case presently before us, a distinction of some significance in my opinion.

Undoubtedly this court has approved an instruction arising from the unexplained possession of recently stolen property from which a jury may infer guilt. I think it has done so, however, without giving consideration, at least I find none expressed, to the essentials of the three different crimes which necessarily require different proof. It may well be just to uphold a conviction of the possession of property recently stolen if the possessor does not reasonably explain the possession. In my judgment this one inference can be logically argued to support a conviction on that charge. But can we add to the inference of guilty knowledge the additional inference that the possessor stole the property? Personally I have some doubt concerning the stacking of one inference upon another to come to such conclusion. I have no doubt however, that placing a third inference upon the other two to infer a breaking and entering is nothing more than a court granting a jury license to infer guilt in a burglary charge when such is not supported by the facts. In my judgment this conviction does not conform to our standards of a jury finding of guilty beyond a reasonable doubt. See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), and more recently State v. Searle, 339 So.2d 1194 (La.1976).

The case of United States v. Jennewein, 580 F.2d 915, 916 (6th Cir. 1978), more nearly accords with my thoughts. It involved a theft from interstate shipment of goods wherein it was held that the defendant’s unexplained possession of some of the recently stolen property was not sufficient to support a conviction of theft. The court stated:

Neither Barnes, supra, nor any other authority cited or discovered justifies the additional inference that would permit the finder of fact to conclude that the possessor of stolen property by virtue of such possession may be deemed to have participated in its theft. Indeed, in the circumstances reflected in the present record, the inclusion of the questioned language in the charge to the jury caused it to virtually equate an instruction to return a verdict of guilty.

In the present case, appellant admits he was drunk at the time of the accident stating that the first time he saw the shoes was when the officer opened the trunk. He emphatically denied throwing a brick or rock through the window of the shoe store or that he was with anyone who did and denied that he was present when shoes were taken from the store. Whether an outright denial of knowledge of possession of the shoes constitutes a reasonable or unreasonable explanation I do not know, but I do not think an explanation, if found to be unreasonable by the jury, rises to the dignity of factual evidence from which a jury could find a verdict of guilty beyond a reasonable doubt.

I would sustain the petition for rehearing.

      . The Court instructs the Jury that the possession of property recently stolen is a circumstance which may be considered by the Jury and from which, the absence of a reasonable explanation, the Jury may infer guilt.

      . Harper v. State, 355 So.2d 314 (Miss.1978); Engbrecht v. State, 268 So.2d 507 (Miss.1972);
        Huddleston v. State, 220 Miss. 292, 70 So.2d 621 (1954); Millette v. State, 167 Miss. 172, 148 So. 788 (1933); Wood v. State, 155 Miss. 298, 124 So. 353 (1929); Wiley v. State, 129 Miss. 196, 91 So. 906 (1922).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John B. McKEE, Jr. v. Mary Greenway McKEE.
    No. 53212.
    Supreme Court of Mississippi.
    July 28, 1982.
    Amended Rehearing Denied Sept. 8, 1982.

      Kay Farese Luckett, Luckett, Luckett, Luckett & Thompson, Clarksdale, John B. Farese, Ashland, for appellant.
    Frank W. Hunger, Lake, Tindall, Hunger & Thackston, Greenville, Lucius E. Burch, Jr., Memphis, Tenn., for appellee.
   PER CURIAM.

PATTERSON, Chief Justice, for the Court:

Mary Greenway McKee was granted a divorce from John B. McKee, Jr., by the Chancery Court of Coahoma County. The decree included alimony, custody of the minor children, attorneys fees and expenses for Mrs. McKee. The only issues on appeal by Mr. McKee concern the monetary awards of alimony and attorneys fees.

The parties were married in 1959 and have four children, two of whom were minors at the time of trial. Although Mrs. McKee received a college degree before her marriage, she has not worked outside the home since that time. The testimony is without contradiction that the appellee has been a good mother and representative of her family, participating actively in church, educational, and other community activities. The record reveals that Mrs. McKee has virtually no assets or income, while her husband, during the course of the marriage, has acquired large land holdings through a partnership with his sister. (Even the family home was owned by this partnership.) He also conducts extensive farming operations through this partnership and other corporations. The evidence indicated his net worth to be in excess of $12,000,000.

Mrs. McKee alleged adultery and cruel and inhuman treatment as the basis for her divorce suit. The respondent’s pleadings admitted the grounds alleged for divorce and the proof amply supported the allegations. Therefore, Mrs. McKee’s entitlement to a divorce and to alimony is unquestioned on appeal. Only the amount and time of payment of the alimony award as well as the amount of attorneys fees are at issue on appeal. The trial court awarded Mrs. McKee a lump sum alimony of $1,250,000, with $150,000 payable on entry of the final decree and the remainder payable in 90 days. She was given use of a Cadillac automobile that was in her possession and furniture and appliances admitted at trial as belonging to her. In addition Mrs. McKee was to remove herself from the parties’ residence and deliver possession to the appellant within 90 days of entry of the final decree. Attorneys fees of $56,350 and expenses in the amount of $19,220.86 were awarded Mrs. McKee. A lien was placed on all of the real estate in Coahoma County in which the appellant had an interest in order to secure payment of the above amounts.

This Court has repeatedly stated that the manner and amount of alimony awards are peculiarly and primarily matters for decision by the trial court. E.g. Aldridge v. Aldridge, 200 Miss. 874, 27 So.2d 884 (1946). In the case of Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973), we stated:

As long ago as 1856 in the divorce case of Armstrong v. Armstrong, 32 Miss. 279, we stated with regard to support for the wife:
There appears to be no fixed rule upon this subject, but it depends upon the discretion of the court, to be exercised with reference to an equitable view of all the circumstances of the particular case, the only general rule being, that the wife is entitled to a support corresponding to her rank and condition in life, and the estate of her husband. These principles are recognized by our statute, which provides, that the court may make such allowance “as from the circumstances of the parties and the nature of the case may be fit, equitable, and just.” ... (32 Miss. at 290). 278 So.2d at 449-450.

In the present case, we are of the’ opinion the trial court’s determination of a lump sum award of $1,250,000 was not manifestly wrong or against the overwhelming weight of the evidence. There was sufficient evidence that the parties were accustomed to an affluent life style, and, moreover, the proof of the appellant’s financial status reveals that his assets were ample to comply with the award without undue burden on himself. However, we do think in view of the large award that the time for payment should be lengthened so as to prevent any likelihood of an oppressive liquidation of assets to meet the judgment. We therefore affirm the chancellor’s award of $1,250,000 in lump sum. We hold, however, that $250,000, less any sums that may have been paid on the award, should be paid on the entry of the judgment and mandate of this court. The remaining $1,000,000 to be paid within ninety days, unless the appellant desires additional time, and in that event, not to exceed one year from this judgment. If additional time is requested the unpaid portion shall be subject to interest at the statutory rate for the extended time.

The appellant also contends that the trial court erred in the award of attorneys fees. We are persuaded by this contention, finding the award of attorneys fees not supported by the evidence and excessive. The appellee, Mrs. McKee, contacted an attorney in Memphis, Tennessee, to institute divorce proceedings against her husband. This attorney was aided by one of his law partners and a Mississippi attorney whom he associated. All three of these attorneys testified concerning their services on Mrs. McKee’s behalf. The leading attorney from Memphis testified that he had never disciplined himself to keep a log of hours spent on his cases, but he estimated his time at approximately 200 hours engaged on the case. His law partner testified that his daily log of the time indicated that he had spent 247 hours on Mrs. McKee’s behalf. The Mississippi attorney had an itemized daily breakdown of his time of over 330 hours engaged on the case on Mrs. McKee’s behalf. Additionally, both Memphis attorneys gave evidence that associates in their firm had expended an additional 28 hours on her behalf. The total hours for the three attorneys and the associates was 805 hours and evidence was introduced that a reasonable charge per hour for an attorney in the community where the case was tried ranged from $50 to $100 per hour. The trial court awarded fees based on 805 hours at $70 per hour, a total of $56,350.

We recognize that the matter of determining attorneys fees in divorce cases is largely entrusted to the sound discretion of the trial court. Walters v. Walters, 383 So.2d 827 (Miss.1980). However, we think the trial court abused this discretion by an excessive award in this case because it is not supported by the evidence. The complaint for divorce was filed in August 1980 and a three-day trial transpired in December 1980. While it is true there was extensive discovery necessitated because of the appellant’s complex financial situation, we nevertheless think from the circumstances and the evidence presented on attorneys fees that 805 hours without specific explanation was an unreasonable time spent in preparation and trial of the appellee’s cause.

In determining an appropriate amount of attorneys fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. Rees v. Rees, 188 Miss. 256, 194 So. 750 (1940). The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

We think it is not the best practice to estimate the time expended as the basis for a fee as the approximation is more susceptible to error, and thus more suspect than properly maintained time records. Estimates, however, can properly be considered by the court but the attorney who does so should have a clear explanation of the method used in approximating the hours consumed on a case. We are also of the opinion the allowance of attorneys fees should be only in such amount as will compensate for the services rendered. It must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary.

As stated, we are of the opinion that there was insufficient evidence presented to the trial court for it to accurately assess attorneys fees. We therefore remand the case on this issue for further testimony and determination by the trial court. However, we affirm the award of expense money in the amount of $19,220.86.

The appellee has filed a motion for attorneys fees on appeal. Ordinarily, under our rule, an award of one-half of the sum granted by the trial court is deemed appropriate on appeal. However, an exception to this rule exists when the permanent alimony awarded to the wife gives her sufficient means to meet the obligation of counsel fees on appeal. Tighe v. Tighe, 239 Miss. 666, 124 So.2d 843 (1960). The award by the trial court was sufficient in our opinion for Mrs. McKee to compensate her attorneys for this appeal. The motion is therefore denied.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE I,EE, BOWLING and DAN M. LEE, JJ., concur.

HAWKINS and PRATHER, JJ., took no part.

      . Mississippi Code Annotated § 75-17-7 (Supp.1981), fixes the rate of interest at eight per cent (8%) per annum on “judgments and decrees.”


author: HAWKINS, Justice, for the Court:

text:
    Minnie Lee Thedford Orcutt BORNASCHELLA v. Eddie James ORCUTT.
    No. 53303.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Rehearing Denied Sept. 8, 1982.
    James W. Nobles, Jr., Jackson, for appellant.
    Riley, Pintard & Hall, P. A., Natchez, for appellee.
    Before SUGG, P. J., and HAWKINS and PRATHER, JJ.
   HAWKINS, Justice, for the Court:

Minnie Lee Thedford Orcutt Bornaschella appeals from a decree of the Chancery Court of Claiborne County adjudicating former decrees of that court, as well as a property settlement and agreement between Mrs. Bornaschella and her former husband precedent to one of the decrees, invalid.

This is the only issue we address on this appeal, and finding the chancellor to have erred in this adjudication, we reverse.

Minnie Lee Thedford Orcutt filed suit for divorce, alimony, child support and property division against her husband Eddie James Orcutt in the Chancery Court of Claiborne County on May 18, 1978. Four children had been born of their marriage, but their eldest child, a daughter, had married. Mr. Orcutt did not contest the action, nor employ counsel, and upon personal service of process she obtained a final decree of divorce at a regular term of court on July 19, 1978.

The late Fred C. Berger was chancellor. The decree granted her a divorce from her husband on the grounds of habitual cruel and inhuman treatment, awarded her custody of their three youngest children (with right of reasonable visitation in Mr. Orcutt), temporary support and maintenance, and other relief.

The final paragraph of the decree stated: That the matters of permanent alimony, permanent child support and all questions concerning permanent rights and division of properties, etc. between the parties raised in the Bill of Complaint are set to be heard by this Court at 9:30 A.M. on the 23rd day of August, 1978, at the Court House in Port Gibson, Mississippi.

Shortly thereafter, Judge Berger died, and a property settlement and support agreement was presented in chambers to Chancellor Ben Chase Callon. This decree, dated August 14, 1978, recites the rendition of the divorce decree, and the fact that such decree reserved the matters of permanent alimony, permanent child support and all questions concerning permanent rights and division of properties for a later hearing on a day in August. This decree then states:

And it now appearing that the parties have voluntarily entered into a “Property Settlement and Support Agreement, Etc.” dated the 10th day of August, 1978, which the Court has examined and approved,
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: FIRST: That the said “Property Settlement and Support Agreement, Etc.” of August 10, 1978, between the parties hereto is approved and made a part of this decree by reference as if fully copied herein; and
SECOND: That the payments for alimony and child support provided for in said agreement shall be due and payable on the first day of each and every month, beginning on September 1, 1978.

In all matters through this August 14, 1978, decree, Mrs. Orcutt was represented by Jake L. Abraham, an attorney in Port Gibson. According to Mr. Abraham, it was the desire of the parties that the actual agreement between the parties not be attached to the decree or incorporated therein. Mr. Abraham also informed Mr. Orcutt during this period that he should obtain his own counsel, but he declined to do so. The agreement between the parties was negotiated between the parties themselves, with Mrs. Orcutt telling Mr. Abraham what her husband would agree to. A final agreement between them was signed and dated August 10, 1978. It was this agreement which Mr. Abraham presented to the chancellor.

The parties’ agreement of August 10, 1978, headed “PROPERTY SETTLEMENT AND SUPPORT AGREEMENT, ETC.” set out the division and respective rights of the two of them in their considerable real and personal properties. The agreement further provided that as support for Mrs. Or-cutt and the minor children, she would receive the interest on certain investments and as additional support he would pay her one-third of his salary, or if self-employed, one-third of his net income.

Mrs. Orcutt filed a petition in the same cause June 1, 1979, setting out the property settlement and support agreement, the decree of July 19, 1978, granting her a divorce, and the decree of August 14, 1978, approving the agreement, and attached copies of all documents, including the agreement, as exhibits to the petition. Her petition then recited the failure of Mr. Orcutt to abide by the August 14, 1978, decree and their agreement, and that he should be held in contempt of court. She also prayed for a partition of realty and other relief.

Mrs. Orcutt in this petition was then represented by V. Douglas Gunter of Jackson. Mr. Orcutt employed Mark W. Prewitt of Vicksburg as his counsel, and filed an answer to the petition on July 12, 1979. His answer admitted the agreement reached between the parties and the two court decrees. He denied some of the other allegations of the petition, and claimed homestead exemption on certain property she sought to partite.

Prior to any hearing on this petition and answer, the parties again effected a compromise settlement of their affairs. On July 31, 1979, they executed a supplemental agreement entitled “PROPERTY SETTLEMENT AND SUPPORT AGREEMENT,” which was presented to Chancery Judge Frank Walden, who rendered a decree on July 31, 1979. This decree recited that the court had jurisdiction of the parties and the subject matter. The court approved the property settlement and agreement “and modification of former decree of this Court,” finding that the agreement was satisfactory. The final paragraph recited the adoption and acceptance by the court of this settlement as a “full, final and complete settlement of all property rights of the parties hereto.”

Judge Walden was also the presiding chancellor at all subsequent proceedings.

On May 21, 1980, Mr. Orcutt in the same cause filed a sworn petition to modify the July 31, 1979, decree and for other relief. Mr. Prewitt was his solicitor. This petition alleged the remarriage of Mrs. Orcutt, who will be referred to hereafter as Mrs. Bor-naschella, and that he was entitled to a refund on alimony payments. The petition was also filed to obtain additional relief in reference to some of their personal property.

Mrs. Bornaschella filed an answer to the petition and a cross-bill on July 5, 1980. Mr. Orcutt filed an answer to the cross-bill.

On August 5, 1980, Mr. Prewitt filed a motion to withdraw as Mr. Orcutt’s counsel, following which Orcutt was represented by legal counsel from Natchez.

On October 21, 1980, counsel for Mr. Or-cutt filed a motion to amend his petition. On December 12, 1980, Mr. Orcutt filed a “Petition for Leave of Court to File a Bill of Review and/or a Bill in the Nature of a Bill of Review and/or a Petition Requesting other Relief.” This petition charged that the divorce decree and other decrees were entered through mistake and fraud on the part of his former wife. The thrust of this petition was that his former wife had been guilty of adulterous relations while they were married, and that he should be relieved from the decrees and all agreements he had entered into.

This petition alleged that he had no knowledge of her adulterous activities, that “he diligently attempted to obtain information regarding her activities but, however, he could not.”

Mrs. Bornaschella answered this petition, and also filed general and special demurrers. The special demurrer set out the statute of limitations. These demurrers were overruled and, on January 6, 1981, the chancellor entered a decree authorizing Mr. Or-cutt to file his bill.

On January 22, 1981, Mr. Orcutt filed a “Bill of Review or a Bill in the Nature of a Bill of Review and/or a Bill of Review Requesting other Relief.” This bill set forth the same allegations in support of relief as the petition for authority to file it, namely: he should be relieved of the former decrees of divorce and other relief and the agreements because of her fraud. Her fraud allegedly consisted of having been an adulterous wife, which he did not know about, and which he could not by due diligence discover prior to all these decrees and agreements having been entered into.

Mrs. Bornaschella answered the bill, pleaded the statute of limitations, estoppel, and raised other defenses. Other motions and orders were filed, but we find them unnecessary to detail for purposes of this opinion.

The bill came on for hearing before the chancellor on February 10, 1981, and at this hearing for the first time, counsel for Mr. Orcutt made a motion ore ten us to amend the bill to conform to the proof to show the decree of August 14, 1978 was void because the matter was heard in vacation on a date different from the time set by decree rendered July 19, 1978, in term time of the Chancery Court of Claiborne County.

The chancellor sustained this motion. Following this he ruled that the divorce decree was valid, but that the chancellor had no jurisdiction to enter the decree of August 14, 1978, because it was not the time specified in the divorce decree rendered at the regular term of court.

Following the hearing, the chancellor rendered an opinion that the bill of review was not sustained by sufficient proof. He further was of the opinion that the August 14, 1978, decree was void because the chancellor lacked jurisdiction to render it on that date. Finally, he found that the subsequent agreement between the parties of July 31, 1979, and his decree rendered on July 31, 1979, were likewise subject to being vitiated and set aside because of the “mistake” on the part of Mr. Orcutt in not knowing the August 14, 1978 decree was “void” when he executed the agreement of July 31, 1979, and the approval of which his attorney and Mrs. Bornaschella’s attorney secured by decree of the court on the same date.

Following this the chancellor proceeded to hear and adjudicate all matters pertaining to alimony and property rights in their substantial properties and financial dealings as though nothing had been done by the chancery court following the divorce decree July 19, 1978. We need not relate all that subsequently transpired in the chancery court, as it is unnecessary for this appeal. As might be surmised, however, from the conclusion reached by the chancellor, the path of the trial proceedings got worse and worse until the court and all parties were mired to their respective axles.

The final decree of the chancery court rendered March 12, 1981 found the August 14, 1978 decree invalid, and the 1979 decree and property settlement likewise invalid. The decree then set forth the rights of the parties concerning custody, child support and their property.

Mrs. Bornaschella perfected her appeal to this Court, and following a hearing before the chancellor to set its amount, filed a supersedeas bond.

Mr. Orcutt filed a cross-appeal from that portion of the decree adjudicating property accumulated during their marriage while the parties were residents of Louisiana was community property.

On August 25, 1981, long after the appeal had been perfected to this Court, Mr. Or-cutt filed another petition in the same cause in the Chancery Court of Claiborne County challenging the adequacy or validity of the supersedeas bond, that Mrs. Bornaschella had disposed of some of the securities held by her, and other claims relative to their properties.

Following notice to Mrs. Bornaschella, the chancellor conducted a hearing on this petition, gave an oral opinion, and rendered a decree on September 15, 1981.

While the decree recited a lack of jurisdiction as to the validity of the supersedeas bond, it adjudicated rights between the parties, placed a lien on certain real property of Mrs. Bornaschella, and directed the sale of a certificate of deposit.

Mrs. Bornaschella has also appealed from the September 15, 1981, decree. By stipulation and agreement of the parties, these subsequent proceedings have been included and made a part of the record on appeal.

The chancellor initially erred in overruling the general and special demurrers to the petition for a bill of review or a bill in the nature of a bill of review.

It was filed more than two years following the decree for divorce, and was therefore subject to Miss.Code Ann. § 11-5-121, which requires that bills of review be filed within two years following the date of the final decree in the cause. Furthermore, bills of review are not favored. Fondren v. Bank of Franklin, 187 So.2d 304 (Miss.1966). We note that Mr. Orcutt, a man of some financial substance, did not see fit to obtain an attorney when his wife filed suit against him and obtained a divorce July 19, 1978. In their agreement and property settlement of August 10, 1978, he again sought no legal counsel, insofar as revealed by the record. The following year, when his wife sought to have him cited for contempt, he recognized the August 14, 1978 agreement and decree, when he was represented by counsel of recognized stature and ability. Again represented by counsel, Mr. Orcutt and his wife entered into a subsequent property settlement and agreement, and a decree was rendered thereon.

The sole basis for this bill of review was the alleged adultery of his wife, which he claimed he had diligently attempted to discover. When his wife sued him for divorce, Mr. Orcutt could have answered and obtained lawful process of the chancery court to secure any such information about his wife. Not choosing to do so, it is incredible to this Court that he should expect any review of their marital life over two years after the divorce decree, his wife having remarried. On its face, the petition stated no basis or foundation for a bill of review, and the chancellor ruled Orcutt had no basis in fact to support his claim.

In the hearing on the bill of review, the chancellor also erred in holding that the decree of August 14, 1978, was void.

As we have stated, the basis of this ruling was that the divorce decree set a date certain in vacation when the matters pertaining to alimony and child support and property rights would be heard, but the decree rendered thereon was another date. The learned chancellor felt that under Miss.Code Ann. § 93-5-17 (Supp.1981) and Moran v. Moran, 252 Miss. 890, 173 So.2d 916 (1965), the decree of August 14, 1978, was void.

Miss.Code Ann. § 93-5-17 and Moran (decided under this statute prior to amendment) simply require that the proceedings to obtain a divorce shall not be considered except in open court, with certain exceptions. None of the proceedings in this case subsequent to July 19, 1978 involved “proceedings to obtain a divorce” as envisioned by either the statute or Moran. See Spradling v. Spradling, 362 So.2d 620 (Miss.1978).

Rather, all proceedings in this case were under the general statutes regarding the power of the chancellor to act in vacation. Under Miss.Code Ann. § 9-5-91 (Supp.1972), a chancellor has jurisdiction, and is empowered to conduct a hearing and enter a decree in vacation on a date different than that set by a decree rendered during a term, and even where there has been no decree in term time setting a date certain for vacation hearing; provided, of course, there has been adequate notice to the parties and no fraud or mistake is involved in the time and place of vacation hearing. See Sperier v. Ward, 233 So.2d 823 (Miss.1970).

In this case, however, there was not even a hearing. Mr. Abraham, as he was fully authorized to do, simply presented to the chancellor for approval an agreement between the parties that contained and settled all issues for which the vacation hearing had been set. No contention was ever made by Mr. Orcutt or his counsel that he had been misled in any manner in executing the agreement with his wife dated August 10, 1978, or in its presentation to and approval by the chancellor on August 14, 1978. The presentation to the chancellor of this agreement between the parties rendered any hearing contemplated by the divorce decree unnecessary. The parties had compromised and settled the matter between themselves, which the chancellor approved by decree. It would be novel indeed to hold that when parties have compromised their differences they must wait until the date theretofore set for trial of their lawsuit to secure a judgment or decree approving their settlement and thereby settling and terminating all controverted issues.

We also observe the decree which the chancellor set aside had been rendered at least two and one-half years previously. The judge who signed the decree was no longer judge; the attorney who presented the decree was no longer in the case. The sole basis for declaring this decree a nullity was its date; it was not the same date as that set by a term time decree. Courts have no responsibility to do so, and should not attempt to set aside decrees long since rendered and entered, which have settled issues between parties, and which they have relied and acted upon, solely because an examination of a date indicates the decree should have been rendered on some other date. The validity of judgments do not hang upon such a fragile thread. The mistake could be that of the judge in writing the wrong date, the attorney’s, the clerk’s, or some stenographer. We have no doubt if a “date” survey were made of the thousands of judgments and decrees in this state, there would be a not inconsiderable number the dates of which would cause curiosity, wonder or amazement.

We therefore hold the August 14, 1978 decree is valid, and any ruling or adjudication otherwise by the chancery court is itself a nullity.

This holding is dispositive of this case, but the ruling of the chancellor that the July 31, 1979 modification agreement between the parties and the decree rendered thereon the same date were likewise either void, or voidable at Mr. Orcutt’s option, does require some comment. It was the opinion of the chancellor that because the August 14, 1978 decree was “void”, when Mr. Orcutt entered into negotiations to compromise the differences between himself and his wife following her petitioning the court to cite him for contempt, he was “mistaken” in believing he was obligated under a decree he thought valid, but which was in fact “void”. And, because of this “mistake” on his part, he made an agreement which he might not have made otherwise, and was entitled to be relieved therefrom.

This rationale overlooks the following:

(1) The chancery court file, a public record, fully disclosed the discrepancy, which was obvious to any cursory examination at all times following August 14, 1978;

(2) Any attorney undertaking to represent either of the parties would have some obligation to examine the court file to ascertain all previous proceedings and decrees thereon;

(3) Any chancellor undertaking to make a ruling on any proceeding in this cause would likewise have some obligation to examine the court file as to all antecedent decrees;

(4) An able and distinguished attorney who represented Mr. Orcutt in all the 1979 proceedings made no issue of this discrepancy, if he in fact noted it;

(5) An able and distinguished attorney from Natchez who made a motion on behalf of Mr. Orcutt to amend his petition for modification of the decree of July 31, 1979, made no issue of this discrepancy, if he in fact noted it;

(6) Another able and distinguished attorney from Natchez who filed a petition for permission to file a bill of review made no mention of this discrepancy in his petition, if he in fact noted it;

(7) The distinguished chancellor whose official obligation prior to signing the decree of July 31, 1979, was to determine his jurisdiction and authority to do so, also failed to look two sheets back in the file and ascertain this discrepancy.

It was only after a hearing had begun on the bill of review that Mr. Orcutt’s last employed attorney discovered this discrepancy and brought it to the attention of the same chancellor who signed the July 31, 1979 decree.

Where was there any misrepresentation or concealment by either Mrs. Bornaschella or her counsel of a discrepancy which would have been blantantly obvious to any person who had taken the trouble to examine the court file?

If there had been any mistake on the part of Mr. Orcutt in entering into the negotiations resulting in the July 31, 1979 agreement and decree resulting therefrom, it was the result of his, his counsel’s, or the trial judge’s oversight. McGee v. Clark, 343 So.2d 486 (Miss.1977), cited by the chancellor as the basis for holding Mr. Orcutt had entered the negotiations under a “mistake”, contains none of the above features.

Even if we were constrained to hold, when indeed we hold the reverse, that the decree of August 14, 1978 was defective, the July 31, 1979 agreement between these parties, when both were represented by able counsel, and the consent decree rendered pursuant thereto on the same date were valid, legal and binding, and are entitled to full force and effect.

One paragraph of the decree of March 12, 1981 in which the chancellor made the above set forth erroneous adjudications did act on the petition filed May 21, 1980 to modify the divorce decree of July 19, 1978 pertaining to child custody. In this paragraph of the decree, Mr. Orcutt’s visitation right as to the two children then living with Mrs. Bornaschella was enlarged from a reasonable visitation as provided in the divorce decree to the third weekend in every month beginning Friday afternoon at 5:00 o’clock and concluding at 5:00 p. m. the following Sunday. There is no dispute between the parties as to this one modification, and our decision will not affect this change in the visitation right of Mr. Orcutt.

Holding as we do the decree of the chancery court of August 14, 1978, the agreement between the parties' dated July 31, 1979, and the decree thereon of the same date all legal, valid and binding, the chancellor had no authority to invalidate any of them.

The September 15, 1981 decree correctly held the chancery court lacked jurisdiction in deciding the validity of the supersedeas bond. Beyond that, however, the decree dealt with property rights and interests in property for events and transactions which had transpired prior to the February, 1981, hearing resulting in the March 12, 1981 decree. The chancellor was without jurisdiction to make any determination therein in a post-trial proceeding with the case on appeal. In holding the chancellor was without jurisdiction to entertain the petition for this post-trial relief, we do so without prejudice to Mr. Orcutt to petition for and obtain any legal or equitable relief available for conversion of assets belonging to him;

In view of our holding there is no need to address the error assigned in the cross-appeal.

This cause is reversed and judgment rendered for the appellant on any decree or portion thereof which affects the legality or validity of the August 14, 1978 decree, the agreement of the parties of July 31, 1979, and the decree of July 31, 1979.

The portion of the March 12, 1981 decree which enlarged the visitation right of the appellee is affirmed.

As to the September 14, 1981 decree, the cause is reversed and rendered without prejudice to Mr. Orcutt to obtain whatever legal or equitable remedy is available for any claim he has against his wife for wrongful conversion of assets belonging to him.

REVERSED AND RENDERED IN PART, AFFIRMED IN PART, AND CROSS-APPEAL DISMISSED AS MOOT.

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

DAN M. LEE, J., dissents.


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

text:
    Michelle S. WOODRUFF v. James Lee WOODRUFF.
    No. 53295.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Rehearing Denied Aug. 25, 1982.
    Dan R. Wise, Hattiesburg, for appellant.
    Miller, Dean & Cordell, Hainon A. Miller, Greenville, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   ROY NOBLE LEE, Justice, for the Court:

Michelle S. Woodruff (Brandon) filed a petition in the Chancery Court of Washington County, Honorable Willard L. Mcll-wain, presiding, against James Lee Wood-ruff seeking to modify a former decree of the court entered May 19, 1977. She sought reimbursement for repairs to the home, which was in her possession, and for part of an income tax refund check payable to both parties, and for reasonable attorney’s fees.

The May 19, 1977, decree granted unto James Lee Woodruff a divorce on the ground of habitual cruel and inhuman treatment, and awarded custody of, and support for, Ashley Shoub Woodruff, minor child of the parties, born February 3, 1976, to Mrs. Woodruff, with visitation rights to the father. Mr. Woodruff filed a cross-petition praying for modification of the decree and for permanent custody of the child. After a full hearing on March 2, 1981, the lower court modified the decree and changed custody of the minor child to Mr. Woodruff, with visitation rights to Mrs. Woodruff, gave possession of the home to Mr. Woodruff, denied reimbursement for repairs, and ordered that the IRS check be divided equally between the parties. Mrs. Woodruff has appealed from that decree and assigns five (5) errors in the trial below.

Has there been a material change in circumstances materially affecting the child’s welfare adversely, and is it for the child’s best interest that custody be taken from her mother?

Appellant was previously married and she has two children by that marriage — a son 17½ years old, and a daughter 16½ years old. Ashley Shoub Woodruff, minor child of the parties, was five years old at the time of the hearing. Appellant is employed with the Washington County Public Defender’s Office at a salary of eight hundred dollars ($800.00) per month. She is thirty-eight (38) years of age, and, one week before the hearing, married Kenny W. Brandon.

The principal testimony relating to a material change of circumstances surrounding the child and the parties since rendition of the final decree was from appellant, appel-lee, and Kenny W. Brandon. The evidence upon which the chancellor relied to establish a material change in circumstances was (1) the sixteen-year-old daughter of appellant by her former marriage became pregnant and her mother took her to Memphis, Tennessee, where an abortion was performed, and (2) from January to the latter part of February, 1981, appellant was seeing and associating with Kenny W. Brandon; at times, during such period, he shared the same bedroom with appellant. The court found that appellant had engaged in an adulterous affair with Brandon and that it was for the best interest of the child that her permanent custody be granted to appel-lee.

In Keyes v. Keyes, 252 Miss. 138, 171 So.2d 489 (1965), the Court held that where the wife is guilty of adultery she is not entitled to her child’s custody. There, the wife had an adulterous affair that lasted over two years. The Court found that she was an unfit mother and that the best interest of the children required that their custody be awarded to the father.

In Yates v. Yates, 284 So.2d 46 (Miss.1973), Mr. Yates was granted a divorce on the ground of adultery and, in the divorce proceeding, he sought custody of a 5½-year-old child of the parties. The Court held that it was for the best interest of the child to remain with the mother, in spite of her adulterous conduct, and granted Mrs. Yates permanent custody with visitation rights to the father.

The lower court, in the case sub judice, did not find appellant, the mother, to be unfit, but did find that it was for the best interest of the minor child that her permanent custody be granted to the father. Substantial visitation rights were permitted to appellant.

We have held, and it is generally conceded, that children of tender age should be in the care and custody of their mother. It is commonly accepted that the best interest and welfare of a small child is promoted by love and care from the mother. We do not think that the isolated incident of an abortion on the 16-year-old half-sister ¡of the minor child has any weight on the best interest of the child. Also, the short affair had by appellant with her present husband before their marriage probably had no material adverse effect on the child. In fact, it is extremely doubtful that the 5!/2-year-old child had any understanding of the significance of such a situation.

From a careful examination of the entire record, we are of the opinion that the two incidents mentioned are not sufficient to constitute a material change in the circumstances surrounding the child and the parties, which materially affects the child adversely, and we hold that the lower court was manifestly wrong in so holding. In view of this conclusion, it is not necessary to address the other assigned errors.

The decree of the lower court modifying the final decree dated May 19, 1977, is reversed and judgment is entered here insofar as custody of the child is concerned, reinstating permanent custody of Ashley Shoub Woodruff in appellant. The case is remanded to the Chancery Court of Washington County for determining visitation rights of appellee and support for the child. As to all other relief granted each party, the decree is affirmed.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND REMANDED.

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

DAN M. LEE, J., dissents.