text:
    James Wright McGRAW & Doris Hardy McGraw v. Daisy Bell Hardy BRYANT & Margaret H. Hardy.
    No. 53839.
    Supreme Court of Mississippi.
    Oct. 6, 1982.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Bell & Collins, James D. Bell, Jackson, for appellant.

Steen, Reynolds, Dalehite & Currie, William M. Dalehite, Jr., Jackson, for appellee.

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

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Dorothy CASSELL & William Epps Cassell, Jr. v. Myrtis CASSELL, Admrx. of Est. of William Epps Cassell, Dec’d.
    No. 53704.
    Supreme Court of Mississippi.
    Oct. 6, 1982.
    Arrington & Arrington, Melinda Bryant Arrington, Hazlehurst, for appellants.
    Powell & Thrash, Roy D. Powell, Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

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

AFFIRMED.


author: BOWLING, Justice,

text:
    Kenneth William WHEAT v. STATE of Mississippi.
    No. 52780.
    Supreme Court of Mississippi.
    Oct. 6, 1982.

      Earl B. Stegall, John F. Hester, Gulfport, Cleve McDowell, Drew, for appellant. (Attorneys have withdrawn from case.)
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   BOWLING, Justice,

for the Court:

Appellant Kenneth William Wheat was indicted for the crime of capital murder of Joseph M. Mayer while attempting to commit the crime of robbery by the Grand Jury of the First Judicial District of Harrison County. He received a bifurcated trial before the same jury as authorized by statute and the former decisions of this Court. After the first stage of the trial, the jury returned a verdict finding appellant guilty of capital murder. After the sentencing stage of the trial, the jury returned a verdict sentencing appellant to death. This appeal follows in accordance with Mississippi Code Annotated, Section 99-19-105 (Supp.1981).

At the outset, we recognize that in this opinion it shall be necessary to refer to another indictment and conviction of appellant for the alleged capital murder of Teresa C. Hayes Mayer, wife of Joseph M. Mayer. In that cause appellant was found guilty of capital murder by the jury, but the same jury was unable to agree on a sentence; after which the trial court sentenced appellant to life under the supervision of the Mississippi Department of Corrections. The Harrison County Circuit Court docket number of the cause involving the death of Mrs. Mayer was Number 17,-101 and the present cause in the lower court was Number 17,102. Appellant interjected preliminary motions before the first trial for the death of Mrs. Mayer, which motions were filed in both causes as one motion, bearing both docket numbers, and heard by the lower court prior to the first trial. It, therefore, is necessary to refer to the first trial for specific purposes brought out in the present appeal.

On July 28, 1979, two young people, Joseph M. Mayer and Teresa Carol Hayes, were married in Paducah, Kentucky, the home of the couple and their families. After the marriage, they left on their honeymoon to the Mississippi Gulf Coast, intending to spend the first night in Memphis, Tennessee, which they did. The parents were called at about 9:20 that evening from a motel in Memphis. The next that was heard from the young married couple was on the evening of Sunday, July 29, 1979, when Joseph M. Mayer called his father at 9 p. m. from a pay station immediately outside the Worth Motel on the beach at Gulf-port in the First Judicial District of Harrison County. Young Mayer talked with his father for twenty minutes. After completion of this conversation the young couple were not heard of again until their bodies were found on July 31, 1979, in a wooded area north of Gulfport. Their hands and feet were tied behind them and each was shot in the back of the head.

The Mayers left Kentucky on their honeymoon in a 1976 Cutlass automobile owned by young Mayer. The car had attached to it a Kentucky license plate. Shortly after publicity was circulated regarding the finding of the bodies and a description of the car, four people who lived near the place where the bodies were found reported to the sheriff’s office that they had had an experience with a man driving a car of that description near their home at about midnight on the night of Sunday, July 29. In the home lived Mr. and Mrs. Algie Netto and Mrs. Netto’s two sons, Gary Wayne Walker and Eugene Walker, ages 26 and 27. Around midnight or a little after, a man knocked on the door of the residence and upon being admitted, stated his car had run into a ditch a short distance down the road and asked for assistance in getting it back onto the roadway. The two Walker brothers drove the man back to the place where the car was stuck in their vehicle. They found that one of the car’s tires was flat. The spare tire was exchanged for the flat tire, and the Walker brothers attempted to get the car back on the roadway but were unable to do so. They then went back to the residence to secure the help of their step-father, Algie Netto. The latter drove his tractor to the scene and was able to pull the car back on the roadway. The driver of the car then drove to the Netto residence and stayed there for a period of time drinking ice water and talking. He then left in the Cutlass with the Kentucky license plate.

The Walker brothers testified that during the ride from their residence to the Cutlass car, the car’s driver sat between them in the pickup truck. They testified that they were able to observe him fully. They also testified they were able to observe him fully at the scene, as their vehicle’s lights were left on for assistance in working on the Cutlass. Mr. and Mrs. Netto and the Walker brothers stated that they had ample opportunity to see the driver of the car fully while he was at their residence drinking water.

A description of the man in the Cutlass was given to the artist connected with the sheriff’s department. From these descriptions a composite sketch of the man was made and immediately circulated. Shortly thereafter Deputy Sheriff Harold Lloyd Wheat [no relation to appellant] of adjoining Pearl River County, contacted the Harrison County Sheriff’s Department and advised that the composite sketch resembled appellant, who was reared in that county, but had been away from the state for a number of years.

On October 19, 1979, appellant was arrested in Orlando, Florida, and later returned to Harrison County, Mississippi, under the charges of murdering the Mayers. In the meantime, subsequent to the completion of the official investigation, appellant was indicted on September 28, 1979, by the Harrison County Grand Jury.

As hereinbefore stated, appellant was first tried in December 1979, for the alleged capital murder of Mrs. Mayer. The trial of the cause sub judice began on January 14, 1980, and ended on January 18, 1980. At the trial, Mr. and Mrs. Netto and Gary and Eugene Walker positively identified appellant as the man who was driving the Mayer’s car at about midnight on the night the Mayers were last heard from at approximately 9:30 p. m. They described his appearance in detail, including his clothing. They positively identified a photograph of the Mayer car as the one occupied and driven solely by appellant on the night the Mayers met their death. A cashier at a local restaurant near the Worth Motel testified from photographs that the Mayers came in for dinner about 6:30 p. m. on Sunday, July 29, and were there about one or one and a half hours. She testified that they were alone during the entire time.

A relative of appellant testified that he had known appellant all his life, and in March 1979, he was called by appellant to come and get him at a bar in Harrison County. Appellant according to the relative had been gone from the State of Mississippi about nineteen years and talked with an accent he did not have when he left the state. [The Nettos and Walkers also testified appellant talked with an accent on the night the Mayers met their death.] The relative testified that from March 1979 until about the time of the Mayers’ deaths, appellant stayed at either his house or the house of another relative. He never saw appellant after the Mayers were found dead. He testified that during the time appellant was staying at his house or the other relatives’ house, appellant had a Vandyke beard. [The Nettos and Walkers testified appellant had a Vandyke beard.] Another relative Dwayne Wheat testified that he went with appellant to the County Courthouse and helped him secure a driver’s license. He testified the last time he saw appellant was about July 28, 1979.

Linda Perry, daughter of Earl Wheat and cousin of appellant, testified she last saw appellant on Saturday, July 28, 1979. ■

Testimony was admitted from Al Winchell, jailor with the Harrison County Sheriff’s Department. He testified on November 29, 1979, appellant called him to his cell and gave him a sealed envelope addressed to Jim Kelly, head jailor, which Winchell immediately gave to Kelly. This note was introduced in evidence and read: “Notify my lawyer and Sheriff Hobbs that I want to plead guilty to the Mayer murder charges tomorrow and I want to be sentenced next week. Kenneth Wheat. 11-29-79.” Mr. Kelly immediately notified the sheriff and appellant’s attorney. Later the same day, Wheat gave the jailors another hand written note stating that he was innocent of the Mayer murders, but in order to spare himself and his family the suffering, he was pleading guilty. He headed this note “Press Release.”

Orlando Florida Police Officer Stephen Finkel testified that upon the arrest of appellant, he first gave a fictitious name but later admitted he was Kenneth Wheat and was wanted for murder in Mississippi.

Appellant propounds five assignments of error in this appeal:

I. THE COURT ERRED WHEN IT FAILED TO REQUIRE THE DEFENDANT TO UNDERGO A MENTAL EXAMINATION TO DETERMINE HIS COMPETENCE TO STAND TRIAL, AND HIS COMPETENCY AT THE TIME OF THE COMMISSION OF THE ALLEGED OFFENSE.
II. THE COURT ERRED WHEN IT FAILED TO DIRECT A VERDICT FOR THE DEFENDANT AT THE CLOSE OF THE STATE’S CASE AS TO THE CRIME OF CAPITAL MURDER.
III. THE COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY AS TO LESSER INCLUDED OFFENSES OTHER THAN CAPITAL MURDER, AND IN FAILING TO ALLOW THE JURY TO CONSIDER LESSER INCLUDED OFFENSES OTHER THAN CAPITAL MURDER.
IV. THE COURT ERRED WHEN IT ALLOWED THE JURY TO CONSIDER THE DEATH PENALTY FOR THE DEFENDANT, IT SHOULD HAVE DIRECTED A VERDICT AS TO SENTENCE, AND SHOULD HAVE SENTENCED THE DEFENDANT TO LIFE IMPRISONMENT.
V. THE COURT ERRED WHEN IT INCORPORATED THE RULING OF THE PREVIOUS COURT DENYING A MOTION TO SUPPRESS CERTAIN ORAL AND WRITTEN STATEMENTS, WITHOUT RECONSIDERING THE SAME.

ASSIGNMENT NO. I.

This assignment challenges the alleged failure of the court to require that the defendant have a mental examination to determine his competency to stand trial and his competency at the time of the alleged crime. In order to get a complete picture of all matters surrounding the admitted failure of appellant to undergo a mental examination, we need to look at the complete history of that issue. On November 15, 1979, appellant’s attorney filed a “Motion for Mental Examination.” He filed one instrument in both indictments with the instrument carrying the circuit court numbers of both indictments. The motion was filed under MCA § 99-13-11 (1972), which provides that the trial court may order an accused to submit to a mental examination on motion made by the defendant, the district attorney, or the court’s own motion. A hearing was had on the motion before Circuit Judge Leslie B. Grant on November 28, 1979. It should be noted that all three of the circuit judges in the district were involved in either motions or trial under the two indictments of appellant. Before the hearing on the motion began, appellant’s attorney announced to the court that after advising appellant that the motion had been filed, appellant advised the attorney that he “would not voluntarily in any event” undergo such an examination. The attorney requested that he be allowed to withdraw the motion without hearing. The appellant was in the courtroom during the hearing. He was asked by the trial judge if he understood that the motion had been filed, and received an affirmative answer. Appellant was then asked if he understood that he was requesting that the motion be withdrawn. The court again received an affirmative answer. The court asked appellant, “Do you agree with that request?” Appellant’s answer was, “Yes, sir.” Accordingly Circuit Judge Grant stated that, “It does not appear to the court that he needs a mental examination and therefore the request to withdraw the motion is granted and the motion is considered withdrawn.” A written order allowing the withdrawal was signed by Judge Grant and filed in both causes.

On November 30, 1979, the state through the district attorney filed a motion for mental examination of appellant. [Supp. Record Volume I, p. 44]. The motion recited the withdrawal of the motion filed by appellant and stated that due to the appellant’s writing the two hereinbefore discussed notes to the jailor, that the state wished a mental examination of appellant. A hearing was had on this motion on November 30. [Supp. Record Volume II, p. 114], This hearing was had before Circuit Judge Ruble Griffin, who later was the trial judge under the indictment for the death of Mrs. Mayer. The state’s motion, as was the appellant’s withdrawn motion, was a single instrument filed under the style and numbers of both indictments. The appellant was present in the courtroom during the hearing on the state’s motion. The district attorney made an oral statement that is shown in the record regarding the two notes written voluntarily by appellant. The district attorney stated his doubts that appellant was insane, but it was thought by the prosecution that a mental examination should be had to be sure. Stating that, “I don’t want the defendant setting the state up.... ” and “I don’t want it to go unnoted that the state did not make an attempt.”

It should be noted at the outset that appellant’s attorney objected to the motion being granted, as only two days before appellant’s motion had been withdrawn. Regardless of the objection of appellant through his attorney to the motion, the lower court properly proceeded to have a hearing on the motion under the strenuous objection of appellant and his attorney. After these objections and the statements by appellant’s attorney that he and appellant were communicating satisfactorily, the following occurred: [Supp. Record Volume II, p. 122],

BY THE COURT: May I ask Mr. Wheat a question? Mr. Wheat, do you understand why it is you were brought back up here again today?
BY THE DEFENDANT: Yes, Sir. Do you want me to stand up?
(THE DEFENDANT STANDS BEFORE THE COURT)
BY THE COURT: Of course, that being that the District Attorney filed a Motion to have you examined by a psychiatrist. My understanding is you previously before Judge Grant, who had heard all of the motions up to this point. I’m Judge Griffin. I’m the one who will be trying your case if we go to trial next week. It is my understanding that Mr. Stegall did file a Motion to have you examined by a psychiatrist.
BY THE DEFENDANT: I withdrew it.
BY THE COURT: You wanted him to withdraw it. Is that correct? What is your attitude about the motion today?
BY THE DEFENDANT: What?
BY THE COURT: What is your attitude about the District Attorney’s Motion? Is it the same?
BY THE DEFENDANT: Well, I think I’m sane. I don’t require a, ... .
BY THE COURT: Just go ahead and explain it to me however you want to.
BY THE DEFENDANT: If the Court orders it I’m going to refuse it. I’m ready to go to trial Monday.
BY THE COURT: You say that you would refuse it?
BY THE DEFENDANT: Yes, Sir.
BY THE COURT: By that — Of course, we could physically remove you to the psychiatrist’s office. You understand that?
BY THE DEFENDANT: I would remain silent.
BY THE COURT: You would remain silent. Of course, I cannot make a man talk. I don’t have that power; and without him talking, Mr. Necaise, I don’t think it . . .
BY MR. NECAISE: I’ll ask the Court to inquire any further if he has desires of having one, or if he resists . . .
BY THE COURT: If he says he is not going to talk to one, I think the answer to that question has already been made.
BY MR. NECAISE: Could I ask the Judge to ask him that question for the purpose of the record?
BY THE COURT: All right. Are you desirous of having an examination? I believe that was the question.
BY THE DEFENDANT: I said if the Court appoints — demands that I — I can’t hear too good. I’ve got an ear infection in both ears. I can’t hear myself talk. If the court orders the examination I’m going to refuse to say anything to the psychiatrist. That’s how it is.
BY THE COURT: In other words you don’t want one?
BY THE DEFENDANT: Right. That’s a way of saying it.
BY THE COURT: That’s right. I think you’re absolutely correct. There’s no doubt about that. Are you hard of hearing, Mr. . . . ?
BY THE DEFENDANT: I have an infection in both ears. I had to see a doctor today; so, I can’t hear too good. Both my ears are infected.
BY MR. STEGALL: Normally, Judge, his hearing is good.
BY THE DEFENDANT: Normally I have good hearing.
BY THE COURT: Oh, I see. Well, I notice you speak rather loudly. Sometimes people with poor hearing do talk louder.
BY MR. STEGALL: I told him to speak up to you, Judge.
BY THE COURT: Oh, you did? Well, he’s responding to your advice. There’s no question about that.
BY THE DEFENDANT: I have to hear myself talk. You know, I can’t . . .
BY THE COURT: Yes. And have you ever been treated by a psychiatrist, Mr. . . . ?
BY THE DEFENDANT: Yes.
BY THE COURT: Where was that, Mr. Wheat?
BY THE DEFENDANT: Most people who go to prison for a long time require psychiatric help because prisons are snake pits in New Jersey. It’s a big insane asylum, you know; and . . .
BY MR. STEGALL: Could I have the Court’s indulgence?
BY THE DEFENDANT: . . . problems, you know? It includes the prison officials as well as the inmates.
BY THE COURT: Well, this is not going to be held against him in this hearing. I think I am entitled to let him respond to the question. I’m not going to be a witness against him.
BY MR. STEGALL: No, sir. I’m not concerned about the court.
BY THE COURT: And what he said here is not going to be used against him. You understand that?
BY THE DEFENDANT: Yes, Sir. But I’m saying it’s not uncommon for a prison or prisoner in Trenton State Prison to be under psychiatric care. The majority of the inmates are. And a lot of times they may try to get themselves sent to the State Hospital because it’s a lot better place than Trenton Prison. You’ve got more privileges; so, inmates try to play crazy to get sent there, not because they are crazy.
BY THE COURT: I don’t doubt that at all, and I feel a little sympathetic with them. Go ahead. Do you have anything else you want to tell me?
BY THE DEFENDANT: I’m finished. I’ll see you in trial Monday.
BY THE COURT: All right, Sir. Well, Mr. Necaise, I feel this way about it. I can’t make a man talk to a psychiatrist; and Mr. Wheat has told me unequivocally— Let me ask you one other thing. Did you ever get a report from any psychiatrist, Mr. Wheat? Never did receive one?
BY THE DEFENDANT: They keep everything secret in prison.
BY THE COURT: Nobody has ever advised you that you do need medical treatment?
BY THE DEFENDANT: They say everybody in prison is crazy. All inmates are crazy. If they weren’t crazy, they wouldn’t be in prison. That’s the way they think, you know? Sane people stay free, and crazy people wind up in prison, ■ you know? I don’t think I need any treatment right now. I’m fully prepared to go to trial and communicate with my lawyer in every way.
BY THE COURT: Well, of course, Judge Grant has already made a finding rather unequivocally that it didn’t appear to him that the man needed any treatment. He hadn’t indicated anything to me today that would cause me to think differently from what Judge Grant found. So, I find that the man’s rational, able to communicate with his attorney, has expressed a desire to stand trial, and as far as his correspondence and things that he has done in the past, even in relation to this case, like statements made to the paper in Orlando, I’m not going to inquire into his motives in making those statements. I assume that he had it at least in his own mind, a good motive; and a motive, not good; but that would probably be a mistake to state that; but a motive that was in his own best interest. I think he is able to form motives, intent, that would be in his own best interest. Is that right, Mr.? And whatever purpose he made that, I think he felt like it might be to serve him well to make those type of statements; and I think he is nodding that he did do that. So, I think it would just be a waste of time to have the man— try to attempt to have the man examined in light of his statements that he has made here today. We can’t anticipate everything that’s going to happen two years from now or a year from now in the State Supreme Court or some federal court on petition for Writ of Habeas Corpus. I just can’t anticipate all of that. As far as I’m concerned the man is ready to go to trial, able to go to trial. There’s no doubt in my mind about that. I deny the State’s motion and send him back to jail; and have everybody here at 10:00 Monday morning. I’ve had the jury ordered to come in at 9:30 to get the little cards filled out, so everybody can get a better look at who’s here and all that; but I don’t see the point any further on this. That’s all. I don’t like to disagree with the District Attorney, but in this case I do. I can’t see there’s any point in this. All right. Okay. You go back to jail.
BY MR. STEGALL: Thank you your Hon- or.

As hereinbefore stated the trial on appellant’s indictment for capital murder of Mrs. Mayer was had the first week in December 1979 and ended on December 7. After the guilt phase of the trial was presented to the .jury, the verdict was brought back finding appellant guilty of capital murder on the morning of December 7. Immediately thereafter, and with appellant facing a possible sentence of death, his attorney filed another motion for mental examination of appellant. [Supp. Record Volume I, p. 47]. A hearing was had on this motion out of the presence of the jury and appears beginning at page 104 of Supp. Record Volume I. The Court requested appellant’s attorney to ask him if he had changed his mind since insisting that the pre-trial motion for mental examination be withdrawn. The appellant then stated he had changed his mind and wanted an examination. The trial court held that it was going ahead with the sentencing phase of the bifurcated trial, but was going to sustain the motion for mental examination at the conclusion of the trial. Evidence was then presented on the sentencing phase and as hereinbefore stated, the jury was unable to agree on a verdict which resulted in the appellant receiving life sentence.

On December 11, 1979, four days after the conclusion of the trial, the trial judge entered a written order requiring a mental examination of appellant, naming the physician who would make the examination. [Dr. Henry Maggio, Supp. Record Volume I, p. 57]. The court in its order directed that the sheriff transport the defendant to and from Dr, Maggio’s office.

What occurred after the court entered its order of December 11 appears in the hearing on appellant’s motion for new trial after his conviction of capital murder of Mrs. Mayer [Supp. Record Volume I, p. 6]. At the outset of the hearing on the motion for new trial, appellant’s attorney stated that appellant had requested him to advise the court he did not wish to proceed any further with any appeal. Appellant’s attorney stated, however, he wished to proceed with the hearing on his motion for new trial. Appellant’s attorney agreed that on December 7 after the jury’s verdict on the guilt phase, appellant stated he had changed his mind and did want to undergo a mental examination. His attorney then went on to say that after the jury was unable to agree on a verdict in the penalty stage, the appellant had changed his mind and refused to undergo the examination ordered on December 11, even though he actually was carried before Dr. Maggio. [Supp. Record Volume I, p. 18]. The defendant requested that he be allowed to make a statement and the following colloquy of questions and answers were had between the trial judge and defendant:

BY THE DEFENDANT: I’ve been under a lot of pressure to submit to a psychiatric examination by a lot of people. And, uh, I definitely don’t want to be examined and that’s sort of the story. And, uh, I’ve come to this conclusion about not wanting to appeal. Uh, it’s taken me a lot of time to think about it as a result of careful deliberation and, uh, it’s not because I’m crazy like Mr. Stegall says.
BY THE COURT: Well, I don’t think Mr. Stegall is accusing you of being crazy. Mr. Wheat. I think Mr. Stegall is a very sincere attorney and, uh, if there’s any doubt about that, he wants it resolved and he wants to take advantage of every, uh, honorable, legal remedy that’s available to him, for your benefit. That’s Mr. Stegall’s purpose of it by, uh,-
BY THE DEFENDANT: (Interposing) I realize that.
BY THE COURT: Yes, sir. You realize that.
BY THE DEFENDANT: Yes, sir.
BY THE COURT: And you’re not mad with him because he raised the issue, are you?
BY THE DEFENDANT: Oh, no, no, we’re still good friends.
BY THE COURT: All right.
BY THE DEFENDANT: We’re still good friends.
BY MR. STEGALL: I thank you.
BY THE COURT: All right. Uh, of course, I’m going to, you can have your appeal without cost to you. Uh, I don’t know what you want to, uh, I want you to think about it further.
BY THE DEFENDANT: I’ve already thought you see, I believe that the, uh, that if I appeal it, it will be a repeat of the same thing, of the same thing, of the first trial. And I can’t see making a ... go through this, you know, making a repeat performance.
BY THE COURT: Well, you’re still facing another trial.
BY THE DEFENDANT: Right, right, right.
BY THE COURT: Here.
BY THE DEFENDANT: If I get a gas chamber verdict in the second trial, I will appeal.
BY THE COURT: Then, you can’t.
BY THE DEFENDANT: (Interposing) I promise you that.
BY THE COURT: Then, you can’t appeal this one because you will have waited too long.
BY THE DEFENDANT: What?
BY THE COURT: You will have waited too long to perfect an appeal in this case, you see.
BY THE DEFENDANT: (Interposing) I said, I said. ..
BY THE COURT:.if you wait till then.
BY THE DEFENDANT: I said if I get a gas chamber verdict in the second trial, I will appeal that.
BY THE COURT: That case only?
BY THE DEFENDANT: Right, right.
BY THE COURT: Oh, I.
BY THE DEFENDANT: (Interposing) This one right here, it’s uh, it’s over and done with as far as I’m I’m concerned.
BY MR. STEGALL: Judge, I’d like to talk with him further.
BY THE COURT: All right. I think you ought to consult with Earl further about it, Mr. Wheat, and, uh, you all talk about it. Of course, I’ll grant you an appeal without cost to you, you understand.
BY THE DEFENDANT: All right. But, uh, nothing he can say or do is going to make me change my mind. I definitely don’t want to appeal.
BY THE COURT: Well, I want you to give that to him in writing.
BY THE DEFENDANT: All right. Why can’t we do it here, now?
BY THE COURT: No, sir. I’ll let you do it in your uh, when you’re in solitary by yourself. And, uh, I think it would work out better that way.
BY THE DEFENDANT: We, uh, have a little misunderstanding, you know, from time to time, but, uh, basically, we get along good, you know.
BY THE COURT: Well, that’s natural. I’ve never known a lawyer and his client that didn’t have some misunderstanding. It would be highly unusual if they didn’t.
BY THE DEFENDANT: Right.

Summarizing what occurred regarding the mental examination of appellant, we have the following: his attorney filed pretrial motions in both causes which were withdrawn at the demand of appellant with the trial judge questioning appellant and ruling that he was entitled to withdraw his motion and he did not appear to need an examination. The state then out of an abundance of caution filed its own motion two days later requesting that appellant be forced to have such examination. Appellant stated positively that he would refuse to undergo such an examination and would stand mute. The court questioned appellant extensively and came to the conclusion that he did not need a mental examination. After the trial of the first case on the guilt phase, the appellant facing a possible death penalty changed his mind and stated he would agree to an examination. The lower court stated that an order would be entered after the conclusion of the trial to have a mental examination of appellant. In the meantime, however, appellant did not get the death penalty, so he again changed his mind and refused to have the ordered mental examination, even though being carried before an examining psychiatrist. It is evident that appellant was merely playing with the court. All three circuit court judges gave appellant every opportunity to have an examination. It should be pointed out here that at no time did appellant or his attorney propound insanity as a defense to either indictment. In fact, it was announced to the court that appellant was not making a defense of insanity. [Supp. Record Volume II, p. 121]. We find no merit in appellant’s first assignment of error. Whatever error was committed was done by appellant alone and was done according to the record in a rational manner.

ASSIGNMENT OF ERROR NO. II

Appellant contends under this assignment of error that he could not receive the death penalty as there was no proof of the crime of robbery in connection with the alleged murder. No authority or discussion is needed on the proposition that a person cannot be convicted of capital murder and receive the death penalty unless the alleged murder is done under certain circumstances. One provision of which is stated “When done without any design to effect death by any person engaged in the commission of the crime of rape, burglary, arson, or robbery, or in any attempt to commit such felonies.” [MCA § 97-3-19 (1972) ].

It is the contention of appellant that the testimony in regard to the taking of the car of the deceased was not “an intent to commit robbery.” Appellant requested and received an instruction (D-13) defining robbery, which stated:

The elements of the crime of robbery are that the defendant must have intentionally and without authority of law taken the personal property of the said Joseph Mayer in his presence and against his will, by violence to his person or by putting him in fear of some violence to his person.

At approximately 9:30 p. m. on the night Joseph Mayer was killed, he was at the Worth Motel on the beach 26 miles from where he was killed that same night. The jury found that appellant killed him. Approximately two and one-half hours after the young couple were together at the motel, appellant appeared at the Netto home with the Mayer car which place was approximately 1.4 miles from where Mayer was killed. Appellant was in complete possession of the Mayer car, along with its contents, consisting of a leather case, luggage, books, camera, radio, baseball bat, and maps.

This Court had a similar set of facts before it in the case of Voyles v. State, 362 So.2d 1236 (Miss.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2184, 60 L.Ed.2d 1059 (1979). We said the following in that case:

Appellant contends that the evidence was not sufficient for the jury to find beyond a reasonable doubt that the alleged killing occurred while appellant was engaged in committing the crime of robbery and, therefore, the appellant could not be guilty of the crime of capital murder, which is a crime punishable by death. Miss.Code Ann. § 97-3-19 (Supp.1977). There is no contention that the jury was not completely, fully, and adequately instructed by the court on the questions of law involved in a so-called felony-murder. The court fully instructed the jury on the statutory definition of robbery, which, according to Code section 97-3-73, is as follows:
Every person who shall feloniously take the personal property of another in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.
Appellant questions the sufficiency of the evidence to prove that he had the “intent” to commit the crime of robbery. This Court said in Shanklin v. State, 290 So.2d 625 (Miss.1974):
Intent to do an act or commit a crime is also a question of fact to be gleaned by the jury from the facts shown in each case. The intent to commit a crime or to do an act by a free agent can be determined only by the act itself, surrounding circumstances, and expressions made by the actor with reference to his intent. Thompson v. State, 258 So.2d 448, (Miss.1972); Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962).
The Court further said in Thompson v. State, 258 So.2d 448 (Miss.1972), the following:
Unless one expresses his intent, the only method by which intent may be proven is by showing the acts of the person involved at the time in question, and by showing the circumstances surrounding the incident.

The criteria for this Court to use in passing on a motion for a directed verdict which was requested under this assignment by appellant is stated in Bullock v. State, 391 So.2d 601, 610 (Miss.1980).

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

Fully considering the history of all that occurred on the night in question, the condition of Mayer’s body with his hands and feet tied, and a bullet hole through the back of his head and shortly thereafter appellant being solely in full possession of the Mayer vehicle and its contents, is clearly a question for the jury as to whether or not he “robbed” Mayer of his car. There certainly is no other reason shown in this record for the brutal murder of young Mayer.

ASSIGNMENT OF ERROR NO. Ill

This alleged assignment of error may be disposed of merely by stating that the appellant did not request an instruction as he alleges in this assignment. The court fully instructed the jury as to all elements to be considered in finding that the killing of Mr. Mayer was “capital murder” rather than “murder,” for the reasons discussed in Assignment No. II. Furthermore, appellant did not request an instruction on a lesser included offense as he now contends should have been given. As discussed in Assignment II the jury had ample evidence to find that the alleged murder was perpetrated during an intent to commit robbery. The jury was amply instructed that it was necessary for them to so find before returning a verdict of capital murder. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. IV.

Appellant contends that he should have been sentenced to life imprisonment at the conclusion of the guilt phase of the bifurcated trial and the jury should not have been allowed to return the death penalty .verdict. The basis of this contention seems to be that because the trial for the alleged murder of Mrs. Mayer resulted only in a life sentence that the giving of the death sentence for the second murder committed at the same time is barred under the principles of res judicata and collateral es-toppel.

Appellant, of course, is concerned by the fact that the jury in the penalty phase trial of the killing of Mrs. Mayer resulted in the jury not agreeing on the death penalty; whereas they did find a verdict for the death penalty in the case sub judice. Any court may take judicial knowledge that under the make-up of various juries, there is no prediction or known reason why different verdicts are reached. There is one situation, however, in the case at bar which stands out. It is that as we have hereinbe-fore discussed, a capital murder conviction and resulting death penalty may be had only if a murder is committed while performing certain other acts including robbery. The proof is that the car in the sole possession of appellant shortly after the death of young Mr. and Mrs. Mayer was owned by Mr. Mayer and not Mrs. Mayer. If we should speculate, which we do not, the first jury could have reasoned that Mr. Mayer was the one robbed of his property. We shall see later that the jury in the case sub judice specifically found that this was a robbery of “Mr.” Mayer’s property.

Appellant relies on the case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

These cases easily are distinguishable from the case sub judice. In Ashe, we have masked men breaking up a poker game by robbing each individual player. Ashe was indicted for robbery of each person. On his first trial the jury found him not guilty. The issue in the case was a question of “identity,” as to whether Ashe was one of the robbers. The first jury found he was not. The Supreme Court held that the rule of collateral estoppel applied and the prosecution should not be allowed to have another jury pass on this question. In the case at bar, we have an entirely different situation — there were two murders. Appellant was tried and convicted of capital murder. The only difference between the two trials was that the jury in the first failed to agree on punishment. The case sub judice was a trial for a separate and distinct murder, for which he had not received a prior acquittal. In the penalty phase of the trials there was no question of identity as the Supreme Court had in Ashe, supra.

In Bullington, supra, there had been a prior trial and an acquittal of the accused, which as shown above was entirely different from the facts presented in the present case. We find no merit in this assignment.

ASSIGNMENT OF ERROR NO. V.

Appellant alleges error in the refusal of the trial judge in the case sub judice to rehear a request by appellant to suppress the two voluntarily given notes written in appellant’s handwriting while confined in jail. We heretofore have discussed these notes. It is admitted that appellant had been given all of his constitutional warnings, including Miranda, an attorney was appointed for him and representing him at the time. Admittedly, without consulting his attorney, appellant wrote the two notes in question in his cell and gave them to the jailor to be given to the head jail warden. Appellant was the one who chose to do this without consulting his attorney.

Prior to the trial for the death of Mrs. Mayer, appellant’s attorney moved to suppress both of the notes. This motion was styled and filed as a motion in both indictments and as one instrument filed in both causes. The hearing before the trial judge prior to the first trial definitely was a hearing on both indictments. The lower court in refusing to suppress the voluntarily written statements said:

Well, the court finds beyond a reasonable doubt that on November 29, 1979, [the day the notes were written], that the defendant was aware of his Fifth Amendment Rights and any notes that he wrote on that day were freely and voluntarily written without coercion, threats or intimidation and I will hold that they are admissible for whatever evidentiary value they may have whether it be for verification of his handwriting or whatever significance the Jury might attach to it.

At the trial of the case sub judice before a different trial judge, appellant’s attorney again requested that the notes be suppressed. The most that can be said is that he was trying to get a second judge to change the court’s mind. This could not be done. We have already seen that the prior hearing was in both cases and the ruling of the first trial judge applied to both. No new grounds whatever were offered in the trial sub judice to change the ruling made by the first trial judge. We find no merit in this alleged assignment of error.

This Court carefully has considered the entire record in the cause, together with all exhibits, briefs, and all instruments appearing either in the original record or the supplemental volumes of the record and they clearly reveal that the jury was fully and adequately instructed before considering either the guilt phase or the penalty phase of the bifurcated trial. On the penalty phase the state and the appellant introduced all of the record involving the guilt phase of the trial. Appellant introduced nothing else. The state introduced appellant’s prior record consisting of a conviction of second degree murder, a conviction of assault with an offensive weapon and a conviction of false imprisonment.

Full and complete instructions were given the jury on the sentencing phase according to prior opinions of this Court involving the same instructions which have been approved by the United States Supreme Court. The jury unanimously found that there were insufficient mitigating circumstances to outweigh the aggravating circumstances. They found that the murder of Mayer was committed in the course of the crime of robbery adding “the car belonging to Joseph Mayer.” The jury specifically found that in addition to appellant committing the murder in the course of the crime of robbery, that the murder was committed in an especially heinous, atrocious and cruel manner in that the victim was bound hands and feet by his own clothing, was shot in the back of the head by direct contact, his body abandoned in a secluded area, and that appellant was previously convicted of three felonies.

Under the capital murder statute [MCA § 99-19-101 Supp.1981) ] adopted by the Legislature on April 13, 1977, and appearing as the Laws of 1977, Chapter 458, the Legislature confined aggravating circumstances to eight sub-head situations. In the case sub judice the trial judge instructed the jury that they were only to consider three statutory circumstances, they being the ones listed specifically by the jury in its verdict. The lower court correctly confined the jury to finding only aggravating circumstances that were proven by the evidence. The jury was not left to make its own findings of aggravating circumstances as was condemned in Jordan v. Watkins, et al., 681 F.2d 1067 (5th Cir. 1982). The court’s instructions “channelled the sentences’ discretion by ‘clear and objective standards and provided specific and detailed guidance.’ ” The court specifically instructed the jury that it was to find beyond a reasonable doubt that one or more of the three above discussed aggravating circumstances existed before a death penalty verdict could be returned and was specifically instructed that if none of these elements were found to exist, the death penalty could not be imposed. The jury’s authority was limited and it was specifically instructed regarding its consideration of aggravating circumstances under the evidence submitted. No speculation was left for the jury.

We have carefully reviewed the present record, along with all of the death penalty cases considered by this Court subsequent to Jackson v. State, 337 So.2d 1242 (Miss. 1976). We have carefully compared those cases with the present case and clearly find that the conviction and death penalty verdict of appellant in the present case is consistent and even-handed with all of the death penalty cases reviewed as stated above.

A study of the entire record convinces this Court that the sentence of death was not imposed by the jury under influence of passion, prejudice or any other arbitrary factor. The evidence reveals that the jury was fully warranted in finding the statutory aggravating circumstances to exist as shown in the jury’s verdict. The sentence of death clearly was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. As stated, all death cases subsequent to Jackson, supra, have been,, fully reconsidered by this Court, and we do not find any prejudice or error in the present case after such consideration.

The record reveals that appellant’s trial attorneys were competent and defended appellant in a vigorous, reputable and efficient manner. He received a fair trial.

The cause is affirmed and December 8, 1982, set for the execution of the death sentence as provided by law.

AFFIRMED.

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


author: PRATHER, Justice,

text:
    DEPOSIT GUARANTY NATIONAL BANK, Catherine M. Fortenberry, John L. Sullivan and Jackie Sullivan v. Joel COTTEN.
    No. 53708.
    Supreme Court of Mississippi.
    Oct. 6, 1982.
    Scales & Scales, Clarence R. Scales, Jackson, Wells & Blalock, Calvin B. Wells, Natchez, for appellants.
    W. W. Hewitt, Meadville, for appellee.
    Before SUGG, HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The appellants, as beneficiaries and trustee, filed a petition in the Chancery Court of Franklin County to probate a copy of Louise Cotten’s 1961 will. Mrs. Cotten’s husband, Joel Cotten, contested the probate of the 1961 will by claiming that it had been revoked by a subsequent 1979 will. Alternatively, he alleged that the 1961 will had presumably been revoked since its original was missing and was last known to be in the possession of the testatrix. The jury found in favor of the contestant, and thereby denied probate of the 1961 will. We affirm.

I.

In 1961, Louise Mullins Clements executed a last will and testament bequeathing her entire estate to a testamentary trust in favor of the appellants herein. Her sister, Catherine Mullins Fortenberry, and her two nephews, John and Jackie Sullivan, the sons of Catherine Mullins Fortenberry, were the sole beneficiaries. Deposit Guaranty National Bank [hereinafter referred to as the Bank] was named trustee. The bank apparently kept an executed copy of this will, and the original was given to Mrs. Clements.

After 1961, Clements married Joel Cot-ten. They were subsequently divorced in 1977, but remarried in June of 1978. Sometime prior to April 24, 1979, Mrs. Cotten employed Maxwell Graves, an attorney, to revise her former will. Upon Mrs. Cotten’s request, a copy of her 1961 will was delivered by the Bank to Graves. On April 26, 1979, a new will was duly executed but the full contents of the will were not testified to. The only known change was indicated in a letter from Graves addressed to the Bank’s branch in Natchez, and it requested that the beneficiary of Mrs. Cotten’s certificate of savings be changed to Joel Cotten. Another letter from Graves to the Bank’s Jackson branch enclosed a copy of Mrs. Cotten’s new will. Graves kept the original of this 1979 will in his office.

Nevertheless, on July 11, 1979, Mrs. Cot-ten had once again telephoned the Bank at its Jackson branch and requested that a copy of her will be sent to her for some changes. On July 12,1979, the Bank mailed her “a copy”, presumably of the April, 1979 will. Thereafter, Mrs. Cotten filed a bill for divorce against Joel Cotten in the Chancery Court of Franklin County on July 17, 1979. However, no action was taken on the divorce case, and it was eventually dismissed after her death.

During the fall of 1980, Mr. and Mrs. Cotten visited the office of Graves, and they tore up the 1979 will at this time. During the trial, Graves attempted to testify as to the will’s contents, but the appellant’s counsel objected to such testimony and the chancellor below sustained.

In the latter part of 1980 and early in 1981, Mrs. Cotten was hospitalized. She entered the hospital in March of 1981 for her last illness, which terminated with her death on March 23, 1981.

On March 31, 1981, Joel Cotten was appointed administrator of the estate of Louise Cotten, he being her sole heir at law, and he knowing of no last will or testament. On May 5, 1981, proponents of the 1961 last will and testament filed a petition to probate an executed copy of that will, making Joel Cotten a defendant. No original wills were found, nor did any witnesses testify as to what happened to the original of the 1961 will. The proponents/appellants now appeal from a jury verdict in favor of Joel Cotten.

II.

The appellant’s first contention is that the chancery court committed error in overruling their motion to exclude the jury on the issue involving probate of the 1961 will. Under certain circumstances, a chancellor must retain a jury to determine issues of fact. See e.g. Miss.Code Ann. § 91-7-19 (1972) (at request of either party to probate proceeding, a jury may decide whether writing propounded is a will of the alleged testator); Miss.Code Ann. § 91-7-29 (1972) (witnesses in trial of issue devisavit vel non shall be examined before a jury); Fowler v. Fisher, 353 So.2d 497 (Miss.1977) (verdict of jury is not merely advisory where required by statute). Furthermore, a chancellor always has the discretion to permit a jury to decide a factual question where necessary and appropriate. Miss.Code Ann. § 11-5-3 (1972); Laub v. Reason, 217 Miss. 475, 64 So.2d 637 (1953); Carradine v. Carradine, 58 Miss. 286 (1880).

In the case at bar, the contestant’s pleading raised the issue of revocation of the 1961 will. In other words, the question to be answered was whether the testatrix revoked her 1961 will or whether she did not. Such an issue, which is also termed revocavit vel non, should be submitted to a jury. W. Morse, Wills and Administration in Mississippi, § 8.16 (1968). Thus, we conclude that the issue of revocation was properly submitted to the jury by the chancellor below.

III.

The appellants’ second contention is that the chancery court committed error in refusing to grant the proponent’s motion for a directed verdict. On a motion for a directed verdict, all evidence of the party movant which is in conflict with the opposing party’s evidence must be disregarded and, if the opposing party’s evidence is sufficient to support a verdict, the motion must be overruled. Loflin v. Thornton, 394 So.2d 905 (Miss.1981); Buford v. Jitney Jungle Stores of America, Inc., 388 So.2d 146 (Miss.1980).

In the instant case, the contestant was benefitted by a rebuttable presumption in his favor that the 1961 will was revoked since the original was last known to be in the testatrix’s possession and could not now be found. See Estate of Willis v. Willis, 207 So.2d 348 (Miss.1968) (if will was last known to have been in possession of testator and is not found after diligent search, it is presumed to have been destroyed by him animo revocandi); Adams v. Davis, 233 Miss. 228, 102 So.2d 190 (1958) (presumption not altered by fact that will was executed in triplicate and one copy was in possession of third party). Moreover, the contestant introduced proof of a subsequent 1979 will and of a letter indicating that Joel Cotten was the beneficiary of the testatrix’s certificate of savings, a feature which was inconsistent with the disposition under the 1961 will.

All of these factors support the contestant’s position that the 1961 will was revoked. Nor does the fact that the 1979 will was eventually revoked change this conclusion. Although some jurisdictions conclude that revocation of a second will revives a prior will, our Court has ruled otherwise. See generally T. Atkinson, Handbook of the Law of Wills § 92 (2d ed. 1953) (revival by revocation of a latter will operates to revive former will in some jurisdictions). In Bohanon v. Walcot, 1 How. (2 Miss.) 336 (1836), the Court stated:

A will is ambulatory, and has no effect, until the death of the testator. If he lets it stand until his death, it is his will, but if revoked, it cannot be. But when revoked, it cannot be considered as having either a present or a potential existence, and must require some express and direct act of the testator, which, in fact, does not revive the defunct will, but adopts it as the present will of the testator, and it is to be regarded as a new testamentary act of the party. To this effect is the text in Roper on Wills, 2S, and the decision in Burtenshaw v. Gilbert, 1 Cowp. Rep. 49; Powell on Devises, 551.
It is expressly said in 7 Johns.Chan. Rep. 270, that where a will has been revoked, either expressly or impliedly, it is gone forever.
The expression of George Grissell, that if the will which Bacon was desired to write for him should not be completed, he desired the will of 1829 to go into effect, cannot be regarded as a republieation of that will. The wish was contingent, and future in its operation. And if the doctrine above held, and which is fully recognized in 7 Johns.Chan.Rep. 270, be correct, it follows, that if the intention had not been future and contingent, but present and unconditional, it would not have had the effect to revive the former will. (Emphasis added). [Id. at 339-40].

There is no evidence in the record which indicates that Mrs. Cotten adopted or republished her 1961 will after revocation of the 1979 will. Under these circumstances, the contestants’ proof was sufficient to support a verdict, and therefore, the chancellor properly denied the motion for a directed verdict.

IV.

The appellants’ third contention was that the chancery judge erred in admitting testimony concerning the subsequent will of 1979. Section 91-5-3 of the Mississippi Code Annotated provides that: “A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing made and executed.” (Emphasis added). In the instant case, the contestant attempted to prove revocation of the 1961 will by the subsequent 1979 will. Since the subsequent will was allegedly destroyed by Mr. and Mrs. Cotten, the only proof available to show that the subsequent will existed was the testimony of witnesses who had seen the will. Our Court has on prior occasions permitted such proof to establish the existence, proper execution, and contents of wills no longer existing. Veazy v. Turnipseed, 219 Miss. 559, 69 So.2d 379 (testimony of witnesses who read holographic will and recognized it as being wholly in testatrix’s handwriting and signed by her was sufficient to establish the existence and proper execution of that will); Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806 (1938) (declarations of testator coupled with other competent evidence may be used to establish existence and contents of lost will). Thus, it would appear not only that the testimony concerning the subsequent will’s existence was admissible but, that the chancellor should have allowed the testimony as to its contents, i.e., whether there was a statement of revocation of the 1961 will, or whether there were inconsistent devises under the two wills. We find no error in introduction of proof of the execution and revocation of the latter will.

V.

The appellants also contended that the chancellor erred in refusing to allow into evidence a public record concerning the divorce proceeding which was pending at the time of Louise Cotten’s death. Similar evidence has been admitted in other jurisdictions to show nonrevocation where a testatrix was on unfriendly terms with the spouse who would be benefitted by the destruction of an unfavorable will. See In re Dean’s Estate, 62 Cal.App.2d 418, 144 P.2d 849 (1944) (admission of evidence of unfriendly relations between surviving husband and testatrix where husband also had opportunity to destroy will); In re Keene’s Estate, 189 Mich. 97, 155 N.W. 514 (1915) (proof of unfriendly relations between testatrix and husband, to whom she bequeathed only $10 by will, which could not be found, held to be material on issue of nonrevocation).

Our Court, in Tucker v. Whitehead, 59 Miss. 594 (1882), laid a broad foundation for the admissibility of evidence in comparable matters by stating:

In such a case it is the part of wisdom to open the doors as wide as possible for the reception of every species of evidence at all calculated to advance the discovery of truth, since not to do so must in a great number of cases result in defeating the will of the deceased by accident or fraud. The evils which may spring from the introduction of parol proof in such a case are less than those which must be wrought by its exclusion. [Id. at 606].

Thus, it was error for the chancellor to deny the admission of the divorce record. However, the record is replete with statements from various witnesses concerning the marital problems of this husband and wife over the years of their marriage. Moreover, the fact that the divorce suit was pending at the time of her death was also brought out in testimony. We, therefore, find no reversible error in the chancellor’s exclusion of this cumulative evidence.

VI.

The appellant’s final contention is that the chancellor committed error in failing to timely instruct the jury to disregard remarks made by the contestant’s attorney during closing arguments. The record indicates the following:

I want to dictate into the record a motion for a bill of exceptions for a statement made by adverse counsel made with regard to Louise Cotton, that statement was made to the Jury that she was head strong and hard to get along with at times.

The chancellor below sustained this objection. However, we still fail to see any prejudice resulting to the proponents from that statement based on the testimony of this record. Thus, we conclude that this contention is without merit.

AFFIRMED.

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

      . The record is not clear as to how many or what copies of which wills were mailed. The trust officer was asked:
      Q. Now you say a copy of the will was mailed back to her was it the will of 1961, that copy?
      A. According to our records we mailed both back, one was mailed to her in 1968 and another mailed to her in 1961.
      Q. The original?
      A. No, sir, we never had the original.
      A. The copy of the original?
      A. No, sir, we never had the original. The copy of the 1961 will was mailed to her, the copy of 1968, the copy of the 1979 was mailed to her in July 1979. We never had the original of either one.
      No other testimony about “the copy of 1968” or any cover letter of that date is developed in the file. However, an executed copy of the 1961 will is offered for probate here. Presumably, copies mailed were xeroxed copies of the executed one held by the Bank. But the record is not clear.


author: SHORES, Justice. TORBERT, Chief Justice JONES, Justice

text:
    James R. KNIGHT, etc. v. Billy GRAY, Bob Brooks, C. Pat Reynolds, H. H. Wheeler, Don Siegelman as Secretary of State, and O. H. Florence as Jefferson County Probate Judge.
    81-973.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    Rehearing Denied Oct. 1, 1982.
    Edward Still, Birmingham, for appellant.
    John S. Foster, Birmingham, for appel-lees.
    Charles C. Pinckney, of Lange, Simpson, Robinson & Somerville, Birmingham, for amicus curiae Jefferson County Republican Executive Committee.
   SHORES, Justice.

This expedited appeal involves an action for injunctive and declaratory relief against James R. Knight, as chairman of the State Democratic Executive Committee, by four candidates for the Alabama legislature, each of whom was declared ineligible to run in the Democratic Primary by a subcommittee of the State Democratic Executive Committee. The subcommittee held that each candidate (plaintiff) did not meet the party’s one-year residency requirement, as it construes § 47, Ala.Const. 1901, or the party rule requiring that a candidate be a “qualified elector” in the district which he seeks to represent.

Each candidate’s complaint alleged that the party subcommittee lacked jurisdiction to hear a challenge to their status until after the primary and that each had fulfilled the constitutional residency requirement.

The trial court held:

“[T]he state Democratic Executive Committee [did not] have jurisdiction to determine in advance of a primary election the eligibility of a candidate in such primary for the office sought.
“[A]nd following the 1982 reapportionment of the legislature under Act 82-629, adopted on June 1, 1982, ... a candidate for a legislative office [is not] required to live for one year prior to the November 2, 1982, general election in a Senate District or House District established under said act.”

This appeal followed.

We hold that the Democratic Party has authority to hear pre-primary challenges to the political or legal qualifications of its candidates. Ala.Code 1975, §§ 17-16-12, -14. See, Hobbie v. Vance, 292 Ala. 367, 294 So.2d 743 (1974).

We reverse that portion of the decree which overturned the party’s ruling rejecting, on residency grounds, the candidacy of each of the appellees. The facts are not materially disputed, and, because of the similarities as among the appellees, we will recite the facts pertaining only to appellee Gray.

Gray has resided in “old” House District 34 (in the same residence) for a number of years. Because of the redrawn house district lines by the reapportionment act of the legislature, Act 82-629, effective June 1, 1982, Gray’s home is now located in an area that is in House District 32. Gray timely qualified as a candidate for the House of Representatives from the “new” House District 34, which embraces a portion of “old” 34, but does not include Gray’s present residence. Gray alleged and testified at trial that he intended to move to a new home in House District 34 before the general election.

Section 47 of the 1901 Constitution provides, in pertinent part:

“[Senators and representatives] shall have been citizens and residents of this State for three years and residents of their respective counties or districts for one year next before their election, if such county or district shall have been so long established; but if not, then of the county or district from which the same shall have been taken.... ” (Emphasis supplied.)

Article VII, Section 1, paragraph (f)(1), of the Democratic Party rules reads, in pertinent part:

“The following persons and none other shall be eligible to be candidates for nomination or election in said primary elections, namely: qualified electors who possess the qualifications fixed by law for the respective offices for which they are candidates for nomination or elec-tion_”

The party, through brief of counsel, states:

“The Democratic Party of Alabama has interpreted Section 47 as meaning that the residence of the candidate must have been for at least one year at one or more successive places within the physical confines of the district the candidate wishes to serve. This would have the practical value of assigning each potential candidate to one and only one district.”

We hold that this is a permissible interpretation of § 47, insofar as candidates running in the party primary are concerned. “The State Executive Committee of a party has full right, power and authority to fix and prescribe the political and other qualifications of its own members and to determine who shall be entitled and qualified to vote in primary elections or be candidates or otherwise participate therein .. . just so such Committee action does not run afoul of some statutory or constitutional provision.” Ray v. Garner, 257 Ala. 168, 57 So.2d 824 (1952). The construction of § 47 which the party makes is not an unreasonable one and is certainly not foreclosed by the language of that provision. Section 47 was placed in the Constitution at a time when county lines defined legislative districts. No house district was smaller than an entire county, and, although the more populous counties were represented by more than one member of the House of Representatives, all were elected countywide, and not from designated districts. Senate districts were composed of one or more counties. The term “district,” as used in § 47 when originally incorporated into our Constitution, therefore, referred exclusively to senatorial districts. Members of the House of Representatives at that time represented counties, not districts, as that term is now defined, thus, the constitutional reference to “counties or districts.”

Therefore, § 47 did not address the present situation where legislative districts are drawn without reference to county lines or any other traditional geographical boundaries.

The plaintiffs argue that § 47 mandates that they be allowed to run in any district so long as a part thereof was taken from the district in which they have previously resided for one year. This would allow five districts in which Gray could run so long as he indicates an intention to move to that district before the general election. The party would limit that choice to one — the district in which he has resided for at least one year. The party points out that this interpretation has the practical value of assigning each potential party candidate to one and only one district. We agree and add that it also has the practical advantage of treating all potential party candidates for such district equally. To follow the plaintiff’s argument would give candidate Gray a choice of five districts in which to run, whereas another candidate for the same position might be limited to one.

We hold that the Democratic Party is within its prerogative in interpreting § 47 as it does for purposes of its party primary. Whether the plaintiff’s arguments would find more acceptance were we dealing with a candidate seeking certification as an independent in the general election we do not decide because that question is not before us.

We acknowledge that an opinion of the attorney general dated November 18, 1981, supports the plaintiff’s arguments. The opinion sets out State Representative J. E. Turner’s request for opinion:

“I am presently the Representative from House District No. 96. I reside in Turn-erville, Mobile County, Alabama. My present residence will be located in House District No. 97 under the new reapportionment plan which has been passed by the Legislature and sent to the Governor for his signature. My question to you is: If I choose to move my residence into House District 96, how long must I reside in that district to be able to run as Representative from that newly created district or, by what date must I move into that newly created district to meet any residency requirements? I would further point out for your consideration that should I move, the place of my new residence would have been included in old House District 96 from which the newly created House District 96 was taken. I point this out in light of Section 47, Constitution of Alabama 1901.”

The letter opinion continues:

“It is the opinion of this office that should you move your residence into that area encompassed by ‘new’ district 96 pri- or to the general election on November 2, 1982, you will have sufficiently met Alabama’s constitutional residency requirements. [Herein is set out the pertinent portion of § 47, Alabama Constitution.]
“Under the reapportionment law, Act No. 81-1049, new district 96 will not come into existence until November 3, 1982.[] Since the new district which you wish to represent will not have been established for a year, under the exception clause of Section 47, it is required that you have resided for at least one year in the district from which the new district has been taken. The new district has been taken in part from old district 96. You currently reside in and represent old district 96. If you move to that area currently in old district 96, but also encompassed by what will be new district 96, you then will have met the residency requirements for you will have always resided in that district from which the new district was taken and when the new districts come into being you will be a resident of the district which you hope to represent.
“In arriving at this conclusion, I am guided by the Alabama Supreme Court’s view of the purpose of Section 47 of the Alabama Constitution which was set forth in Butler v. Amos [292 Ala. 260], 292 So.2d [645] at 646 [ (1974) ]:
“ ‘It is clear from this history that “the intent and object originally intended to be accomplished” was that a legislator must have lived at least one year in the same district with the people he sought to represent in the legislature so that they could know him and he could learn something of their needs.”
“The people who you seek to represent are principally those who you already represent and who have come to know you. Your change of residence in accordance with this opinion will be consistent with the object originally intended to be accomplished by Section 47 of the Constitution of Alabama, 1901.”

Whether we would agree with this opinion in the context of an independent candidate’s running in the general election is an issue we also pretermit. We simply hold that it does not foreclose the position taken by the Democratic Party here for purposes of its primary. Indeed, whether § 47 has any application after the reapportionment of the legislature to comport with federal requirements is itself subject to debate. This issue too we leave for another day.

The judgment appealed from is reversed, and the cause remanded for the entry of a judgment consistent herewith.

REVERSED AND REMANDED.

MADDOX and EMBRY, JJ., concur.

ALMON, J., concurs in the result.

TORBERT, C. J., with whom FAULKNER and BEATTY, JJ., join, concurs in the result, with opinion.

JONES, J., dissents, with opinion.

TORBERT, Chief Justice

(concurring in the result):

We are called upon to construe the meaning of a constitutional provision which requires that a candidate for the legislature reside for one year prior to the election in the district he seeks to represent, which also contains a special provision applicable when the district has not been established for one year before the election, to-wit: “but if not, then of the county or district from which the same shall have been taken.” It is my view that the Party’s subcommittee has reached the correct result in the case of these particular candidates, but nevertheless misconstrued the “but if not” clause of § 47. Likewise, I think this Court has reached the correct result in this particular case, but the Court should go further and construe the “but if not” clause so that its meaning is made certain and clear in the future.

This clause first appeared in the Alabama Constitution of 1875, where it was part of Art. IV, § 4. That section was brought forward almost verbatim into the Constitution of 1901, as § 47. While it is true that in 1875 and in 1901, the members of the constitutional convention probably could not have foreseen a situation where legislative districts would be drawn on any basis other than county lines, it does not necessarily follow that our present apportionment system, based entirely on population, has made the “but if not” clause meaningless.

The purpose and meaning of the “but if not” clause are not at all difficult to understand, nor is it difficult to perceive that it could have application in the context of today’s apportionment scheme.

Section 47 requires that a candidate reside in a district for one year before he can be elected to represent that district. There is a good reason for this:

“It is clear from . .. history that ‘the intent and object originally' intended to be accomplished’ was that a legislator must have lived at least one year in the same district with the people he sought to represent in the legislature so that they could know him and he could learn something of their needs.”

Butler v. Amos, 292 Ala. 260, 262, 292 So.2d 645, 646 (1974).

This purpose is fulfilled perfectly by a literal reading of ’the “but if not” clause. Read literally, the “but if not” clause can apply only in a ease where a new county or a new district is created entirely out of an old county or an old district. Only in that limited situation will there be a “county or district from which the same [i.e., the new county or district] shall have been taken.” (Emphasis added.) It does not apply to a situation where a new county or district is created out of several old counties or districts — and for good reason. It is important to note that the clause contemplates only one old county or district: “but if not, then of the county or' district from which the same shall have been taken” — not “a county or district” or “any county or district,” but “the county or district.”

There is valid reason for this saving clause. The framers foresaw the situation where a person has lived in a district more than a year and has become known by the others in his district and has come to know them, so that the purpose of the residency requirement, as set out in Butler, is met, but who finds that, less than a year before the next election, his district has been subdivided so that some of the people in his old district are cut off and put in a district by themselves, and the new district line is between him and them. That situation would look like this:

The “but if not” clause was intended to allow the candidate who has resided for over a year in District ABC, to run for election as a legislator representing District C. Why should he not be allowed to? The purpose of the residency requirement has been met — the candidate has spent over a year in the (old) district with residents of C, just as he has with the residents of A and B, and residents of C should know him just as well as residents of A and B.

This particular provision becomes important when we consider that the candidate, while a resident of B, may in actuality be closer to the residents of C than to the other residents of A and B. Consider an additional element in our hypothetical:

In this case, it is clear that the candidate will be closer to the people of “new” District C than to the people of District AB— even though he is not in “new” District C. If the candidate is willing to move the short distance to C (and perhaps it would be immaterial whether he moved before or immediately after the election), why should the people of “new” District C not be permitted to choose him as their legislator? No policy or purpose of § 47 would be defeated by such a choice; on the contrary, this is exactly what the “but if not” clause allows.

But now let us try to apply § 47 to the situation of candidate Gray in the present case. He resides in “old” District 34, but that district has been carved up and divided among several “new” districts. His situation would be that of the following diagram, in which the inside square represents “old” District 34, and the outside triangles represent “new” districts:

Candidate Gray wishes to move from “old” 34 to “new” 34 and run for election there. The “new” district has been in existence for less than a year, so Gray does not have time to meet the general requirement that he reside there for one year before the election. Therefore, he seeks to invoke the “but if not” clause of § 47 — he says, in effect, “But I have lived for the past year in one of the old districts from which the new district has been taken.”

The “but if not” clause cannot be applied to Gray’s case. To so apply it would defeat the letter and the spirit of § 47. He is not within the letter of it because “old” 34 is not “the county or district” from which the new one was taken — it is “one of the districts” from which the new one was taken. But more important, he would not be within the spirit of § 47: the purpose of § 47 being that the candidate must have been in a district with his constituents long enough (one year) for them to learn him and for him to learn of their problems. Butler v. Amos, supra. In Gray’s situation there will be others in the new district who have not been in the old district with Gray for the year preceding the election. To allow him to run in “new” 34 would, therefore, violate the purpose of § 47 as it was set out in Butler.

Now that district lines are drawn according to the population patterns and not according to county lines, is there any present field of operation for the “but if not” clause? Yes. Consider another hypothetical: Suppose that in a certain county there are three legislative districts, and the census figures allow 30,000 persons per district. The county would look like this:

Suppose that after the next census, we still have one legislator for 30,000 people, but that 15,000 people have moved from District 2 to the eastern half of District 3. The lines might be redrawn so that the county looks like this:

In this example District 1 remains unchanged; District 2 is enlarged to include the west half of “old” District 3; and a “new” District 3 is created. If the next election is less than a year away, then the “but if not” clause would allow a person who has lived for a year anywhere in the “old” District 3 to move into “new” District 3 and automatically meet the one-year residency requirement. To allow this result would comport with both the letter and the spirit of § 47, Const. 1901.

To the extent the Party has interpreted § 47 as requiring that a candidate must have lived for one year within the land area of the “new” district, I think it has erred. Nevertheless, as § 47 relates to the situation of these particular candidates, I think the Party and this Court have reached the correct result. I do think the meaning of the “but if not” clause should be directly addressed in this case.

FAULKNER and BEATTY, JJ., concur.

JONES, Justice

(dissenting).

I respectfully dissent. Because I agree with the rationale and the conclusion in the Attorney General’s opinion cited in the majority opinion, I preface my dissent with this observation: The language from the Attorney General’s opinion, “new district 96 will not come into existence until November 3, 1982,” is technically incorreet. When, in fact, it came into legal existence depends upon the action of the United States Attorney General pursuant to the 1965 Voting Rights Act. While this inaccurate premise may materially affect Representative Turner’s situation under Act No. 81 — 1049 (the same having been approved by the legislature October 26, 1981), it is conceded by all parties in the instant case that House District 34 was established less than one year from the date of the general election, thus invoking Section 47’s “but if not” clause.

Acknowledging that the Attorney’s General’s opinion is contrary to its position, the Party, through counsel’s brief, uses multiple examples to demonstrate “how unfair [the Attorney General’s] interpretation would be.”

“Let us assume a legislative district made up of two towns called Alpha and Bravo and a neighboring district containing the town Charlie. Under the new reapportioning act, Alpha becomes a district by itself, and Bravo and Charlie are joined in one district. The Attorney General would allow any resident of Alpha to move to Bravo or Charlie and claim that he had lived for one year in the new Bravo-Charlie District.”

I interrupt this recitation of the Party’s “unfair” examples to make this comment: The last-quoted sentence from the Party’s brief is in error to the extent that it interprets the Attorney General’s opinion as allowing a resident of Alpha to move to Charlie and claim that he had lived in the new district for one year. The point that was raised initially in Representative Turner’s letter, and re-emphasized in the Attorney General’s opinion, was the fact that Representative Turner proposed to move “to that area currently in old district 96, but also encompassed by what will be new district 96.” This is true because Section 47 of the Constitution, specifically the exception clause, can only be interpreted to provide that if the district which the candidate seeks to represent has not been established for one year next before the election, then such candidate shall have been a resident of such district from which the newly-established district has been taken for one year next before the election. By way of a footnote to the last-quoted sentence from the Party’s brief, counsel makes the following comment:

“Under the opinion to J. E. Turner, an incumbent legislator would have to be careful not to move out of his present district, but there is no reason to restrict the Attorney General’s reasoning so as to prohibit a non-legislator’s move into any part of the new district.”

Unless the comment contained in this footnote is a play on the words “you currently ... represent old district 96,” thus interpreting the Attorney General’s opinion as making a distinction between an incumbent and a non-incumbent candidate, I fail to understand the point of the comment. Suffice it to say, assuming the accuracy of the factual premise sufficient to invoke the “but if not” clause, I agree with the Attorney General’s interpretation of Section 47. The opinion’s references to Representative Turner’s incumbency is speaking merely within the context of Representative Turner’s situation, and not for any purpose of distinguishing Turner’s situation from that of any other candidate otherwise situated.

I recite another “unfair” example from Appellant’s brief:

“The town of Delta was formerly a district. It has recently been split among four new districts. Under the Attorney General’s opinion, any resident of Delta could move to any of the four districts and be a qualified candidate because each includes some part of Delta.”

Again, the Party’s conclusion, in my opinion, is a misinterpretation of the Attorney General’s opinion. “Any resident of Delta” could not meet the one-year residency requirement by moving to any part of the four new districts merely because each includes some part of Delta. Such an interpretation is not in keeping with Section 47. Only if he moved to some portion of the new district that was also in the old Delta district, could he meet the “from which the same shall have been taken” criterion of Section 47. I will pursue my analysis of this point within the context of the instant facts later in this dissent.

The principal objection raised by the Party to the Attorney General’s opinion is the choice which it gives to one citizen that may not be available to another. To this I would answer: This choice, under prescribed circumstances, is the very choice inherent in the “but if not” clause of Section 47.

Admittedly, Section 47 of the Alabama Constitution, including the “but if not” clause, was drafted and adopted in contemplation that counties, as political subdivisions, would serve as the basis for delineating House districts and Senate districts— with one or more representatives from each county and one or more counties within each Senate district. While the federally-mandated reapportionment scheme abandons the county unit or political subdivision concept, thus creating an environ not contemplated at the time of the adoption of Section 47, I see no reason for treating our own constitutional mandate as inapplicable for reasons of obsolescence or difficulty of application.

For the sake of clarifying my position, I now interpret and apply Section 47’s “but if not” clause to Candidate Gray’s situation. Immediately before June 1,1982, Gray lived in House District 34, where he has resided for approximately nine years. In response to the United States Attorney General’s partial disapproval of the 1981 reapportionment act (pursuant to Section 5 of the 1965 Voting Rights Act, 42 U.S.C. § 1973c), the state legislature adopted Act No. 82-629, effective June 1, 1982. By virtue of the newly-drawn House district lines, “old” House District 34 is overlapped by five new House districts. Gray now resides in “new” House District 32.

If, before the 1982 general election, Gray changes his residence to new House District 34, which residence site is also located in an area formerly encompassed by old House District 34, he has complied with the one-year residency requirement of Section 47. It is clear that, except for the “but if not” clause, the one-year residency requirement could not be met under the instant circumstances. It is the “but if not” clause, however, when given a reasonable and logical field of operation, that brings Gray, subject to certain contingencies, within its compliance.

It is without dispute that “new” House District 34 has not been established for one year before the election. It must be determined, then, if Gray has been a resident for one year of the House district from which the “new” House district has been taken. Assuming his residency in that portion of “new” House District 34 which also comprised “old” House District 34, it is clear that he has been a resident for more than one year of the “district from which the same [the new district which he now seeks to represent] shall have been taken.”

In conclusion, I emphasize that my interpretation neither overrules, modifies nor weakens Butler v. Amos, 292 Ala. 260, 292 So.2d 645 (1974). Indeed, I fully embrace Butler’s holding that the viability of Section 47’s one-year pre-election residency requirement is unaffected by the federally-mandated reapportionment of the state legislature.

I would simply hold that this constitutional one-year pre-election requisite shall have been complied with in the event the Appellees are, on November 2, 1982, residents of an area in their respective “new” districts in which they have qualified as candidates, which were part of the area comprising their former house districts and in which they had resided for more than one year. It is my view that any other holding would violate both the spirit and letter of Section 47. I believe the majority has erred in giving a party rule and its interpretation status superior to that of our State Constitution.

      . The language “new district 96 will not come into existence until November 3, 1982,” is technically incorrect; and while this inaccurate premise would materially affect Representative Turner’s situation under Act No. 81-1049 (the establishment date of House District 96 being October 26, 1981), it is conceded by all parties in the instant case that House District 34 was established less than one year from the date of the general election.

      . The condition of Gray’s moving before the 1982 general election is stated in the context of Gray’s allegation and proof of intent to move and not as a legal requirement. In fact, other than the one-year requirement, the only constitutional residency requirement is found in the last clause of Section 47: “[A]nd they shall reside in their respective counties or districts during their terms of office.” Under my interpretation, therefore, if Gray is elected in the general election as a state representative from District 34, he can then serve in that capacity so long as he resides in District 34 during the term of his office; i.e., he could await the outcome of the general election, and then, if elected, he could move into new District 34, as hereinabove discussed, and hold office during his term so long as he continued to reside therein.


author: PER CURIAM.

text:
    Ex parte J.B. SHUTTLESWORTH. (In re J.B. SHUTTLESWORTH v. Arthur James MILLER, James Tillman Miller and Clifford W. Hardy, Jr.).
    81-750.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Edward F. Morgan, Tuscaloosa, for petitioner.
    Sam M. Phelps of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for respondents.
   PER CURIAM.

This is a venue case. The petitioner (plaintiff below) seeks a writ of mandamus to compel the trial judge to set aside an order transferring a malicious prosecution suit from the Tuscaloosa County Circuit Court to the Bessemer Division of the Jefferson County Circuit Court.

HISTORY OF PROCEEDINGS

October 12,1977 Complaint filed in Jefferson County for trespass on land in Tuscaloosa County.
January 9,1979 Default judgment against defendant.
January 8,1980 Motion for relief from judgment, based on insufficient service of process.
April 4,1980 Motion granted.
April 9,1980 Motion for change of venue.
May 9,1980 Motion granted. Case transferred to Tuscaloosa County.
October 27,1980 Case dismissed for lack of prosecution in Tuscaloosa County.
October 21,1981 Complaint for malicious prosecution filed in Tuscaloosa County.
November 17,1981 Motion for change of venue.
May 12,1982 Trial court ruled Tuscaloosa County had neither jurisdiction nor venue and ordered case transferred to Jefferson County.

The original complaint, claiming trespass, was filed in Jefferson County and involved the alleged cutting of timber on property situated in Tuscaloosa County. The second complaint (brought by the defendant in the trespass action), filed in Tuscaloosa County after the dismissal of the trespass action, claims damages for malicious prosecution and specific performance of an alleged timber contract.

THE ISSUE

Whether venue for this malicious prosecution action lies only in Jefferson County where the suit for trespass was originally filed, or could it be transferred and terminated in Tuscaloosa County, since it was a trespass action?

PETITIONER’S CONTENTIONS

The petitioner argues that Tuscaloosa County is the proper venue for the malicious prosecution suit because:

1. The action was brought where the wrong was committed;

2. The suit involves property in Tuscaloosa County; and

3. Venue.was proper as to the non-resident defendants; and, thus, venue was also proper as to the defendant from Jefferson County.

RESPONDENTS’ CONTENTIONS

The respondents, in an excellent brief supporting the order of transfer, make these points:

“After the Court in Jefferson County transferred the suit to Tuscaloosa County, the suit remained pending in Tuscaloosa County for approximately five months. During this time, [the defendants in the instant action] never filed any pleading, engaged in any discovery, or took any action whatsoever in the suit. The record reveals that the only action that occurred in Tuscaloosa County was the Court’s dismissal of the suit for want of prosecution.
* * # * * *
“In this case, every action except termination occurred in Jefferson County. Only the ministerial act of dismissal connects the case with Tuscaloosa County, and although termination was essential to the tort, the acts of malice from which the tort arises occurred in Jefferson County. Consequently, the tort occurred in Jefferson County, and venue is proper there.
* ‡ ‡ ‡
“Finally, Shuttlesworth contends that Rule 82(d) [ARCP], which requires that a transferred action be treated as if originally filed in the new county, means that [the original] actions in Jefferson County can be construed to have occurred in Tuscaloosa County. The rule, however, is clearly a procedural one to guide courts in the administration of transferred cases. The rule could not possibly affect the substantive question of where the act of malicious prosecution took place.”

DECISION

Code 1975, § 6-3-2 (unaffected by ARCP 82), prescribes four criteria for determining venue of an action. Depending on the character and nature of the case, the action may be brought (1) in the county where a defendant resides; (2) where the act complained of occurred; (3) where real estate involved is located; or (4) where a nonresident defendant is found.

Petitioner contends that venue is proper in Tuscaloosa County under each of the latter three rules. We need only address the first of these: Because the trespass action against petitioner was transferred to, and terminated in, Tuscaloosa County, the alleged act of malicious prosecution occurred there.

We decide the central venue issue without regard to whether ARCP 82(d) is to be taken literally in the instant context. Once the trespass action was transferred to Tuscaloosa County — the county in which the trespass allegedly occurred, and thus the only county which had proper venue— the trespass action remained as a pending prosecution in Tuscaloosa County from the instant the transfer was effected until it was dismissed more than five months later. Therefore, one of the elements of § 6-3-2(a)(3) (“the county in which the act or omission complained of may have been done or may have occurred”) has been met. And this is true irrespective of whether the trespass action is considered to have been filed or pending in Tuscaloosa County from the date of its original filing in Jefferson County or only from the effective date of the transfer to Tuscaloosa County.

Respondents can take no comfort in the court order, “dismissed with prejudice for want of prosecution.” Such an adjudication of dismissal, if construed as respondents contend would leave every defendant, who is the victim of a malicious prosecution without a remedy where the guilty plaintiff decided not to pursue the litigation and suffer a dismissal “for want of prosecution.” The ground “for want of prosecution” for an order of dismissal signifies merely that the plaintiff defaulted in his pursuit of the claim; it could not, and does not, have the effect of wiping out the filing and pendency of the prosecution. See Buecker v. Carr, 60 N.J.Eq. 300, 47 A. 34, 36 (N.J. Ch. 1900).

The adjudication of dismissal of the original trespass action is an essential element of petitioner’s claim for malicious prosecution (See Johnston v. Duke, 284 Ala. 359, 224 So.2d 906 (1969)); and its “for want of prosecution” ground is unrelated to the maintenance of the prosecution of that action prior to its dismissal. We hold that mandamus is the appropriate remedy. Ex parte City of Huntsville Hospital Board, 366 So.2d 684 (Ala.1979); Medical Service Administration v. Dickerson, 362 So.2d 906 (Ala.1978).

We further hold that, because the prosecution complained of occurred in Tuscaloosa County, the trial court erred in ordering the claim for malicious prosecution transferred to Jefferson County. § 6-3-2(a)(3).

The petition for writ of mandamus to compel the trial judge to set aside his order of transfer is granted and the writ prayed for is hereby issued.

WRIT OF MANDAMUS ISSUED.

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