author: BOWLING, Justice,

text:
    Grady BURROUGHS v. STATE of Mississippi.
    No. 52826.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Coleman, Breard & Walker, John R. Coleman, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and WALKER and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant Grady Burroughs was indicted, tried and convicted of the crime of embezzlement in the Circuit Court of Lee County. The indictment charged that appellant embezzled 14 black Angus cows that were in his possession by virtue of a trust agreement with a person named Morgan.

The facts dictating the disposition of this appeal practically are undisputed. As is frequently the case, prior to the start of the venture, hereinafter related, Morgan and appellant were friends. Morgan had a few acres of land on which he wished to place six or seven head of cattle, the small number being dictated by the fact that the land would support only that number. He asked appellant to try and find some cows. Appellant ascertained that a man named Carter had 20 cows for sale, but would not sell less than the entire number. It was decided that all would be bought. For the purchase of the cows, Morgan wrote a check payable to appellant, who in turn had his son deposit the check in his account and withdraw cash funds to pay Carter. Morgan then took six of the cows to his acreage. At the same time, it was agreed that appellant would take the remaining 14 cows to a pasture he was renting from its owner for $500 per year. In addition to the rent, appellant was to feed, look after, and otherwise perform all services necessary for the care of the cows. After the sale of the cows and deducting expenses, any profits' were to be shared equally.

Within a few days after appellant carried the 14 cows to his pasture, it was ascertained that several had Bangs disease and the pasture was quarantined by the proper government agency. Two weeks after the purchase, five of the cattle that had Bangs disease were sold through the cattle auction yards. Appellant kept the records of this sale, as well as subsequent sales hereinafter described.

The remaining nine cows were kept until the latter part of the year. In the meantime, it is undisputed that the cows were what is known as “wild cows.” Two of them escaped from the pasture. Appellant employed expert cow chasers, who upon finally chasing the cows in a swamp, saw them fall over dead from the race.

The remaining cows were fed by appellant with feed furnished by him. It is undisputed that in an effort to tame the cows, they were fed at a certain spot each day, which is the usual practice in such efforts. According to the undisputed proof of appellant, this did not help. The cow venture ended with appellant carrying the remaining seven cows to the sale, after two had to be caught by the same professional cow catchers. Again, he kept the records of this sale. All of which records appear in the record before this Court.

The reasons for the failure of appellant and Morgan to reach a settlement are conflicting. -Morgan stated that he would request information about the cows from appellant, but that no information was received. Appellant stated that when he called Morgan after the Bangs disease was discovered in the cows, that Morgan was in a town in south Mississippi, and told appellant to handle the cows as he saw fit.

Although the record is not clear, it appears that Morgan and appellant attempted to settle the matter of the sale of the cows, but were unable to do so. The indictment followed.

Research does not reveal a case in this jurisdiction of cow embezzlement by a joint venturer. However, we find a case with practically identical facts as those in the case sub judice from the Supreme Court of Missouri in State v. Ossendorf, 357 Mo. 366, 208 S.W.2d 209 (1948). The court, after discussing the identical facts we have before us, even to the fact that the cows were black in both cases, reversed the conviction, stating that:

The general rule of law is that,

“If it appears that accused had any interest in the property jointly with another, he cannot be convicted of embezzlement with respect to such property; * * 29 C.J.S., Embezzlement, § 8.
“Likewise, it is the rule that a partner cannot be convicted of embezzling partnership property. 18 Am.Jur. 588, Sec. 31; 29 C.J.S., Embezzlement § 16; Ex Parte Sanders, 23 Ariz. 20, 201 P. 83, 17 A.L.R. 980, Dancy v. State, 41 Tex.Cr.R. 293, 53 S.W. 886. In the case before us the state’s evidence disclosed that the defendant was not a bailee of the cattle he was charged with having embezzled, but it did show that he had a material pecuniary interest in the cattle at least equal to that of the prosecuting witness.

Appellant, after conviction, filed a motion for a judgment of acquittal notwithstanding the verdict of the jury alleging mainly that the state did not prove the defendant guilty of the crime of embezzlement. We agree.

We have heretofore seen in the so-called “gray horse” case in the Supreme Court of Missouri that appellant could not be convicted of embezzlement of the cows in which he had an interest jointly with Morgan. The Court went on to say that in addition to this principle, if there was a partnership arrangement, he could not be guilty of embezzling partnership property. From the above discussions, we have seen that the 20 cows were purchased with the clear understanding that Morgan could take care of only six of them; the remaining 14 were placed solely in the possession of appellant and the record clearly shows that they were dealt with as property in which both Morgan and appellant had an interest. This Court in American Surety Co. v. Cooper, 222 Miss. 429, 76 So.2d 254 (1954), said:

“In 69 C.J.S., Partnership, § 1, p. 398, Chancellor Kent’s definition of a partnership is quoted as follows: ‘A contract of two or more competent persons, to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss, in certain proportions.’ ” (76 So.2d at 257).

In 29 C.J.S., Embezzlement § 16, we find the following:

“In the absence of statutes otherwise providing, it may be stated as a general rule that partners cannot embezzle partnership funds which come into their possession, because of their joint interest or ownership therein.” (Emphasis added).

In Ward v. State, 113 Miss. 22, 29, 73 So. 865 (1917), the question arose as to whether or not there was a partnership under the stated facts revealed in the case. In discussing a definition of whether or not there was a partnership, we stated: “It will be seen in the monographic note to this case that the questions of partnership turn on delicate distinctions, but we do not believe it is shown by this record.”

After a thorough study of the record and the available authorities, we are forced to the conclusion that Morgan and appellant entered into a joint venture in which both had an interest with definite obligations required of appellant which gave him an interest in the cows. We believe that this venture under the peculiar facts of this case, constituted a partnership arrangement and as stated by the Supreme Court of Missouri, appellant could not be convicted of embezzling the cows in which he had an interest. Morgan certainly had and still has a cause of action for money owed or an accounting, but the criminal court cannot be used for the purpose of collecting a civil debt.

REVERSED AND APPELLANT DISCHARGED.

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


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    Kenneth GOLDMAN v. STATE of Mississippi.
    No. 52960.
    Supreme Court of Mississippi.
    Dec. 9, 1981.

      Watts & Bilbo, Pat H. Watts, Jr., Pasca-goula, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Kenneth Goldman was convicted in the Circuit Court of Jackson County, Honorable Robert T. Mills, presiding, on a charge of manslaughter by culpable negligence in the operation of an automobile, was sentenced to a term of five years with the Mississippi Department of Corrections, and, on this appeal, has assigned two errors in the trial below.

I.

The appellant first contends that the prosecution failed to prove the elements of manslaughter by culpable negligence and that the verdict of the jury was contrary to the law and the overwhelming weight of the evidence.

The evidence favorable to the state reflects that on the morning of April 24, 1979, appellant awakened at approximately 5:00 a. m., prepared lunch, and left home for work in his four-wheel-drive pickup truck at approximately 5:45 a. m. He was proceeding along his usual route in a southerly direction on Mississippi Highway 613, which is a black-topped two-lane highway running generally north and south. On that morning, Gary Coleman, Richard Cochran and Sandra Crane (the deceased) were proceeding in a northerly direction on Mississippi Highway 613 and were going to pick up another friend for their senior trip to Gulf Shores. Sandra Crane was sitting on the passenger side of the front seat, Richard Cochran was sitting on the back seat and Gary Coleman was driving the automobile, a 1978 gray Plymouth.

About one-tenth mile south of Big Point, Mississippi, Highway 613 inclines to the south and a solid yellow line is painted on the right center of the highway, indicating that vehicles traveling south may not cross into the east (northbound) lane of the highway. About 6:15 a. m., shortly before reaching the beginning of the incline and the solid yellow line, appellant overtook and passed a vehicle driven by Eva Roberts, drove back into the. southbound lane, and, approximately one hundred yards ahead of the Roberts vehicle, started to pass a pickup truck driven by Robert Cook. In doing so, appellant drove his truck around the Cook vehicle, crossed the solid yellow line and was driving in the northbound lane. His truck was about even with the cab of the Cook pickup truck when the car in which Sandra Crane was riding came over the hill crest, proceeding north in the east lane of the highway. Appellant applied his brakes, and, at the same time, Cook braked his own vehicle, trying to avoid the impending collision. Appellant drove off the pavement on the east shoulder of the highway and, in the emergency, Gary Coleman, driver of the Sandra Crane car, also drove over on the east shoulder. The vehicles collided and Sandra Crane was fatally injured, expiring at the scene. The weather was partly cloudy but fair, lighting was good and visibility was not hampered.

Cecil Roberts testified to the following:

Q. I want you to tell this jury just exactly what you saw that morning.
A. Well, it was, I would say about 6:15 in the morning, and we was, I would say, approximately 100 yards behind the truck, and it started to go around another truck on a grade, and he couldn’t see over the hill, over the grade, and then another car was coming from the other way, and there was a collision.
* * * Jfe * *
A. Well, that’s all right. We were coming south on 613, and the truck went around us before we got to the grade, and then he pulled back in, there was another truck, and then we got to the grade right along here, he pulled out before he could see where he was going over the top of the hill, and the other car was coming north, and they had the head-on collision.
* * * * * *
Q. Do you have an opinion as to the possible speed of that truck that passed you, Mr. Roberts?
A. 60.
* * * * * *
Q. And, Mr. Goldman’s truck. Now when Mr. Goldman attempted to pass Mr. Cook, did he have to cross over this yellow line?
A. Yes sir. .He had to do that, because he was right on the grade, and he couldn’t see ahead where he was going, so he had the truck over the line, because he was on the left-hand side of the road. Robert Cook testified:
A. About the time he got beside me, I saw the car coming over the hill, and I hit my brakes, and his front fender was beside my door at that time, and he hit his brakes, and I started trying to get off the road. When I finally got an opportunity to get all the way off the road, I got off, and I looked back, and they had the collision.
* * * * * *
Q. All right. Here is my question. How fast was Mr. Goldman going in his truck when he tried to pass you, your opinion now?
A. Well, when I looked in my rear view mirror, he was coming up on me pretty fast. So, I would say 70, 75, somewhere around in there, because he was coming up on me pretty fast.
Q. Well, let me ask you this. Did he have to cross the yellow line to pass you?
A. I believe he came out before the yellow line started, but he was beside me whenever I started through the yellow line.

Appellant admits he crossed the yellow line but he thought he could see over the crest of the hill, since his pickup truck was higher than the normal vehicle. Appellant testified he was going fifty to fifty-five miles per hour and that, although his actions constituted simple negligence, he was not guilty of culpable negligence.

The case of Dendy v. State, 224 Miss. 208, 79 So.2d 827 (1955), has facts similar to the case sub judice. They follow:

On November 21,1953, Robert Maxwell (Max) Sanders was riding in a 1952 Ford being driven by his son Bobby Sanders. They were on Highway 11, which runs north and south, about three miles north of Laurel, and were driving north toward their home in Sandersville. Also occupying the Sanders car was a Negro man named Claude Lindsey. The jury accepted the State’s version of the evidence, which was substantiated by the testimony of four eye-witnesses. The Sanders car had just descended a large hill, going north at a rate of about fifty miles an hour. It began ascending a small hill, and was on its right or east side of the road. Driving south at the crest of this hill, coming toward the Sanders car, was a 1948 Mercury convertible occupied by Mr. and Mrs. Ed Perry and their child. Immediately to the rear of the Perry car was appellant’s Pontiac. A yellow line, indicating no passing, was on the right side of the center line as Perry and Den-dy were ascending the small hill going south.
As these two cars reached the crest of the hill, with the Perry car going about fifty miles an hour, appellant speeded up and pulled over on his left or east side of the road in an apparent attempt to pass the Perry car. As he speeded up to do so, he at that time saw the Sanders car coming north near the crest of the hill. Because of appellant’s position on his left side of the road and because of his speed at that position, he was not able to cut behind the Perry car, back onto his right side. Bobby Sanders saw appellant’s car when appellant, trying to pass, cut onto his side of the road, and pulled about half of his car, including both of the right wheels, off of the pavement and on the shoulder, and immediately slowed down to a speed of 25 miles or less. Sanders was trying to get out of the way of appellant’s automobile. Nevertheless, appellant, on his wrong or left side of the road, being the east side of the highway, ran almost head-on into the Sanders car, near to and slightly south of the crest of the hill, hitting it at about the middle of the left front wheel. The middle of appellant’s front bumper struck the Sanders ear at that point. The point of impact was well over on the east side of the highway, which was the wrong side of the road for appellant to be occupying, and in fact the Sanders ear was about half way off of the highway. As a result of the impact, the Sanders car was knocked entirely off the pavement and was turned facing the highway. Appellant’s car rebounded from the collision back onto the west side of the road. Max Sanders was killed, and appellant has been convicted of manslaughter for his culpable negligence in causing that death. (224 Miss, at 210-211, 79 So.2d at 827-828)
The great weight of the evidence amply supports the jury’s verdict and the conclusion that appellant, recklessly and with a willful and wanton disregard of the safety of others and of human life, attempted at a high rate of speed to pass the Perry car at the crest of the hill, before he could see where he was going, or who was coming toward him; and that as a direct result of appellant’s culpable negligence in these respects Mr. Sanders was killed. Smith v. State, 197 Miss. 802, 20 So.2d 701 (1945); Coleman v. State, 208 Miss. 612, 45 So.2d 240 (1950); Sullivan v. State, 213 Miss. 14, 56 So.2d 93 (1952).
(224 Miss, at 212, 79 So.2d at 828-829)

We recognize that this Court has construed culpable negligence to mean negligence evincing a reckless disregard for the value of human life and that each case must be considered on its own facts. Gandy v. State, 373 So.2d 1042 (Miss.1979); Lester v. State, 209 Miss. 171, 46 So.2d 109 (1950), Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941). Under the established principle of criminal law, in considering motions for directed verdicts, requests for peremptory instructions of not guilty and contentions that the jury verdict is against the overwhelming weight of the evidence, we must consider as true all testimony offered by the prosecution, together with reasonable inferences, and if that evidence will support a verdict of guilty, the question is for the jury to determine. Warn v. State, 349 So.2d 1055 (Miss.1977). In carefully reviewing the evidence in this case, and in applying that principle, we conclude that, upon such evidence, there was a guilt issue for the jury to determine, and that the verdict of the jury is supported by the evidence.

II.

Appellant next contends that the lower court erred by admitting into evidence the verdict of the coroner’s inquest to establish the corpus delicti.

The coroner testified that he viewed the body of Miss Crane and that, in his opinion, she died from internal injuries. Although he was permitted to testify about the procedure in the coroner’s inquest, no verdict or documentary evidence was offered by the state, as in Blackwell v. State, 166 Miss. 524, 146 So. 628 (1933), Death of a victim and criminal agency may be established by circumstantial evidence and by reasonable inferences to be drawn from such evidence. Elliott v. State, 183 So.2d 805 (Miss.1966); King v. State, 251 Miss. 161, 168 So.2d 637 (1964).

In the case sub judice, Miss Crane, a young woman in her late teens, whom the record does not show suffered from any physical or mental impairment and who was beginning an outing with friends to Gulf Shores, Alabama, was riding on the right front seat of the vehicle which collided with appellant’s truck. Physical evidence and photographs of the vehicles after the collision indicate that there was a terrific impact and that the right front side and passenger area of the vehicle were demolished. Immediately after the tragic accident, persons checked and viewed the body. They testified that Miss Crane’s body was jerking, blood was running from her mouth, glass covered her face, she had quit breathing, and efforts by the ambulance attendants failed to revive her. The circumstantial evidence and inferences overwhelmingly established the cause of death resulted from the automobile collision and, if error was committed in the testimony of the coroner, which we do not decide, the same was harmless.

There being no reversible error in the record, the judgment of the lower court is affirmed.

AFFIRMED.

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


author: LEE, Justice

text:
    Ricky STRODE v. STATE of Mississippi.
    No. 52965.
    Supreme Court of Mississippi.
    Dec. 9, 1981.

      Vance & Perrier, Travis T. Vance, Jr. and Eugene A. Perrier, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   LEE, Justice

for the Court:

Ricky Strode was indicted, tried and convicted in the Circuit Court of Warren County, Honorable John E. Ellis presiding, for manslaughter by culpable negligence in the shooting of Troy Hensley, and was sentenced to a term of eight years with the Department of Corrections. He has appealed to this Court and assigns two errors in the trial below.

I.

Was the verdict of the jury contrary to the overwhelming weight of the evidence and the law?

Appellant resided in the home of Mr. and Mrs. Wayne Carter in Vicksburg. He was a friend of Troy Hensley, the deceased, his twin brother, Roy Hensley, and Steve Hill. During the evening of September 6, 1980, Carter was cleaning a .22 caliber revolver. Before starting the operation, he emptied the gun by firing six times into the ground. After cleaning it, Carter stated in the presence of appellant that he had fired all the bullets and had no cartridges with which to reload the gun. He returned it to a chest of drawers, where he found several rounds of ammunition and again loaded the weapon. Carter placed the gun in its holster and closed the drawer without telling anyone that it had been reloaded.

The next day, after getting off from work, appellant met the Hensleys and Steve Hill, they went with him to the Carter residence for the purpose of changing clothes, and discussed plans for the evening. They decided to go hunting and fishing in the afternoon and later to drive across the river to P. J.’s Bar in Louisiana. While in the Carter house, appellant showed his friends a loaded snub-nosed .22 caliber revolver. He took it into another room and presently returned with the .22 caliber pistol Carter had cleaned the night before. Appellant began to wave the gun in the air and jokingly said, “One of these days I’m going to walk into P. J.’s and shoot the lights out.” Troy Hensley and Roy Hensley were standing in front of appellant approximately six feet away and Steve Hill was seated nearby. The gun was fired and Troy Hensley was fatally wounded. At trial, appellant testified to the following:

Q. ... You recognize that a pistol is very dangerous thing, do you not, Ricky?
A. Yes, sir.
Q. You recognize that it is something that kids or anybody else shouldn’t be horsing around with, don’t you?
A. Yes, sir.
Q. And, yet you were doing that very thing that night, weren’t you? That evening you were horsing around with that pistol, weren’t you?
A. Yes, sir, I was.
* * * * * sk
Q. ... You did say that you didn’t know the gun was loaded, is that correct?
A. I didn’t know it was loaded, no, sir.
Q. And, you didn’t know that it was not loaded, did you?
A. I assumed it wasn’t.
Q. You did not know that it was not loaded, did you?
A. No, sir, I did not know.

Roy Hensley testified on cross-examination:

Q. Okay. Now, you said he was waving the gun around in the air like this (Indicating), and then when he brought it down the gun fired, is that correct?
A. He had to pull the trigger.
Q. But, Mr. Hensley, you don’t know whether he pulled it or not, do you?
A. He pulled the trigger.
Q. Sir?
A. He pulled the trigger.
Q. Did you see him pull the trigger?
A. Yes, sir.
Q. You viewed him pulling the trigger?
A. I was looking right at him.

Steve Hill testified to the following:

A. He just — he was waving the gun around in the air and said one night he was going to walk into P. J.’s and shoot the lights out.
* * * * * *
A. And, then he brought it down and the gun went off.
* * * * * *
A. Well, he was waving it around and he just dropped it down.
Q. Did he pull the trigger?
A. Yes, sir.

The appellant testified that he did not think the gun was loaded but that he did not know it was unloaded. He admitted that he was waving the gun over his head but said that it slipped out of his hand, he tried to catch it and the gun went off while pointed in Troy Hensley’s direction.

In Jernigan v. State, 305 So.2d 353 (Miss.1974), the accused was found guilty of manslaughter. He claimed that he did not know the gun was loaded and that it discharged accidentally. In affirming the conviction, this Court said:

Defendant testified that he just pulled the gun out of his shirt pocket and it went off. Defendant said that he thought the gun was empty and further explained that his reason for pulling the gun out of his pocket was he and Bowers “pranked” with each other in this manner frequently. Defendant contends the gun was discharged by accident; therefore, the evidence does not support the verdict of manslaughter.
This was a question of fact for determination by the jury and we are of the opinion that the evidence overwhelmingly supports the verdict of the jury.
The evidence in this ease establishes that defendant pointed a loaded gun at Clarence Bowers, and that the gun discharged, killing Bowers. Defendant’s actions unequivocally show a conscious, wanton and reckless disregard of the likely fatal consequences of his willful act which created an unreasonable risk. The evidence overwhelmingly supports the jury’s verdict of manslaughter. See Frazier v. State, 289 So.2d 690 (Miss.1974); Campbell v. State, 285 So.2d 891 (Miss.1973); Gant v. State, 244 So.2d 18 (Miss.1971). In Robertson v. State, 153 Miss. 770, 121 So. 492 (1928) this Court stated:
“If the pointing of a loaded pistol at a human being is not culpable negligence, under the above definition, then it would be difficult for the mind of mortal man to conceive of stronger facts which would constitute such negligence.” (153 Miss. at 776, 121 So. at 493).

[305 So.2d at 354]

In Latiker v. State, 278 So.2d 398 (Miss.1973), the Court found that the evidence was insufficient to sustain a conviction of manslaughter by culpable negligence, since there was no testimony of horseplay with the pistol, drunken brawling or any other reckless conduct that could be interpreted to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life. That case was followed in Phillips v. State, 379 So.2d 318 (Miss.1980).

However, the elements absent in the La-tiker and Phillips cases are present in the case sub judice. Also, there is testimony of two witnesses that appellant pointed the pistol at Troy Hensley, pulled the trigger, and the gun fired, resulting in Hensley’s death.

We are of the opinion that the facts of this case presented a question for the jury as to appellant’s guilt of manslaughter by culpable negligence and the jury verdict is supported by the evidence.

II.

The appellant next contends that the lower court erred in granting Instruction S 4, in that it cut off his defense of accident or misfortune. We have carefully examined that instruction and all other instructions granted in the case and are of the opinion that, considering them together, they correctly submitted the issues to the jury and there is no reversible error in Instruction S^4.

For the reasons stated, the judgment of the lower court is affirmed.

AFFIRMED.

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


text:
    Samuel Louis HARRIS v. STATE of Mississippi.
    No. 53116.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Halat & Pisarich, Peter Halat, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and LEE, JJ.
   LEE, Justice

for the Court:

Samuel Louis Harris was indicted in the Circuit Court of Harrison County for robbery by assault. A motion for change of venue was sustained, he was tried and convicted in the Circuit Court of the First Judicial District, Hinds County, Honorable J. Ruble Griffin presiding, and was sentenced under the habitual criminal statute to serve life without benefit of parole with the Mississippi Department of Corrections. He appeals from that judgment to this Court.

The only error assigned on the appeal is whether or not the lower court erred in overruling appellant’s motion for a mistrial based upon the selection of the jury panels.

When the prospective jurors were brought into court for empaneling juries, each one filled out an information card which was received by the court administrator. The names of those persons excused were removed from the information», cards, Mrs. Sharon Haley, secretary of the court administrator, shuffled the cards, arranged them in groups, and designated twelve names each as Juries 1, 2 and 3. Mrs. Haley testified the circuit judge had directed her to use such method and that it was not the court’s practice to draw those names from a wheel or from a box at random.

The case was called for trial and appellant’s counsel moved to quash the jury panel on the ground that the jury selection process was in violation of the statute. The trial judge found that the method was fair and impartial and overruled the motion.

Mississippi Code Annotated section 13-5-26 (Supp.1981), sets out the following method of selecting jury panels:

(1) The circuit clerk shall maintain a jury box and shall place therein the names or identifying numbers of all prospective jurors drawn from the jury wheel.
(2) A judge or any court or any other state or county official having authority to conduct a trial or hearing with a jury within the county may direct the circuit clerk to draw and assign to that court or official the number of jurors he deems necessary for one or more jury panels or as required by law for a grand jury. Upon receipt of the direction, and in a manner prescribed by the court, the circuit clerk shall publicly draw at random from the jury box the number of jurors specified. The jurors drawn for jury service shall be assigned at random by the clerk to each jury panel in a manner prescribed by the court.

The laws providing for listing, drawing, summoning and empaneling juries are directory and absent a showing of prejudice, bias or fraud, the panel will not be quashed. Miss. Code Ann. § 13-5-87 (1972). However, in the case sub judice the juries were empaneled by the court administrator’s secretary, while Mississippi Code Annotated section 13-5-26 (Supp.1981) specifically provides that the circuit clerk shall publicly draw jurors at random and shall assign them at random to each jury panel. The record does not reflect that either the court administrator, or his secretary, had been designated as a deputy clerk.

Many circuit court judges in the state direct the clerk to assign jurors at random by publicly drawing their names in open court from a receptacle. We do not limit the procedure to use, but call circuit judges’ attention to Mississippi Code Annotated section 13-5-26 (Supp.1981) which requires that the jurors be drawn and assigned to the juries at random by the clerk upon direction of the circuit judge. Conceivably, there could be cases in the future which may require reversal for failure to follow the statute, even though it is directory. We recognize that trial courts have the authority and power to follow their procedures for expediting business of the court and that the courts’ direction in selecting juries ordinarily is within the sound discretion of the trial judge, but the jury selection method should be followed as set forth in the statute. Peters v. State, 314 So.2d 724 (Miss.1975).

The record here does not indicate prejudice to the appellant, nor is any asserted by him, and we hold that there was no reversible error in empaneling the juries. Therefore, the judgment of the lower court is affirmed.

AFFIRMED.

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

      . The petit juries were empaneled by a circuit judge for Hinds County.


author: WALKER, Justice,

text:
    Billy Ray BOYD v. STATE of Mississippi.
    No. 52907.
    Supreme Court of Mississippi.
    Dec. 9, 1981.

      J. Kennedy Turner, Philadelphia, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court.

This is an appeal from the Circuit Court of Neshoba County wherein Billy Ray Boyd was convicted of aggravated assault upon Constable Bennie Lee Adkins and sentenced to serve a term of twenty-five years in the custody of the Department of Corrections. He appeals from this conviction contending the constable was unlawfully arresting his brother-in-law and he was privileged to aid in the resistance of that arrest.

As the state’s only witness, Constable Adkins testified he was attacked by the appellant as he attempted to arrest Charles McBeath for a misdemeanor at McBeath’s home in the Beashia Community of Nesho-ba County.

The witnesses for appellant Boyd testified that Constable Adkins told McBeath to come with him, that he had a warrant for his arrest, but that Adkins never showed McBeath the warrant nor informed him of the reason for the arrest. The warrant does not appear in the record. McBeath testified he told Adkins that he would go with him after he used the bathroom, but that Adkins struck him with a blackjack which knocked him to the ground. Appellant, Boyd, testified he was carrying his baby daughter in his arms and attempted to aid McBeath when Adkins also struck him with the blackjack. Appellant testified he sat his daughter on the car, and used his pocket knife in an attempt to defend himself from the constable who continued to swing the blackjack.

Constable Adkins testified McBeath was swinging at him from one direction and that appellant Boyd came at him with a knife from the other direction. Adkins testified the pocket knife had a blade six to seven inches long. In the affray Constable Adkins’ forearm was cut requiring eight days hospitalization.

Appellant contends the arrest was unlawful because the testimony was undisputed that Constable Adkins did not show a warrant to McBeath nor inform McBeath the reason for the arrest. The fact that the constable did not have possession of the warrant or show it to the accused would not necessarily invalidate the arrest. The requirements set forth in Mississippi Code Annotated section 99-3-7 (1972) provide, in pertinent part:

Any law enforcement officer may arrest any person on a misdemeanor charge without having a warrant in his possession when a warrant is in fact outstanding for that person’s arrest and the officer has knowledge through official chan-neis that the warrant is outstanding for that person’s arrest. In all such cases, the officer making the arrest must inform such person at the time of the arrest the object and cause therefor. If the person arrested so requests, the warrant shall, be shown to him as soon as practicable.

In Torrence v. State, 283 So.2d 595 (Miss.1973), this Court held that the officer who knew of an outstanding warrant had probable cause to arrest defendant on a misdemeanor charge not committed in his presence even though he did not have the warrant in his possession and the defendant was not entitled to resist the arrest.

Neither did the failure of Adkins to inform McBeath of the object or cause of the arrest necessarily make the arrest unlawful. However, the failure to inform a defendant of the reason for his arrest has been held to place upon the state the burden of proving probable cause for the arrest. Clay v. State, 184 So.2d 403 (Miss.1966); Upshaw v. State, 350 So.2d 1358 (Miss.1977).

In the Clay case, defendant was convicted of operating a confidence game and appealed his conviction contending he was illegally arrested. There was no testimony that the accused was informed by the arresting officer of the object and cause of his arrest. The Court held:

The defendant testified that he was not so advised, so the defendant by his testimony made out a prima facie case of illegal detention and arrest.
The burden of proof then shifted to the State to prove that there was probable cause for the issuance of a warrant or reasonable cause for the making of the charge. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The arresting officer or officers did not testify so there is no testimony whatsoever in the record to refute the prima facie case of illegal detention and arrest made out by defendant. (184 So.2d at 406).

In the present case it is undisputed that Constable Adkins neither had possession of the warrant nor informed McBeath of the reason for his arrest. Nowhere in the record did the prosecution present any evidence to show that there was probable cause for arresting McBeath, and neither the affidavit nor the arrest warrant appears in the record. Therefore, so far as this record reveals, the arrest was unlawful.

Appellant finally contends that because the arrest was unlawful, the trial court erred in refusing to grant certain jury instructions dealing with self defense. These instructions were properly refused by the trial judge with the exception of D-19, which provided as follows:

The Court instructs the Jury that a person has a right to use reasonable force to resist an unlawful] arrest, or to aid another in resisting an unlawful arrest.
If you should find therefore, that Billy Ray Boyd did injure Bennie Lee Adkins [with a knife], but that this was done either in resisting an unlawful arrest or in aiding another to resist an unlawful arrest, and that the force he used was necessary under the circumstances, then you should find the defendant not guilty.

It is fundamental that a person has a right to use reasonable force to resist an unlawful arrest. 6 Am. Jur.2d Assault and Battery § 79, p. 71-72 (2nd ed.1963) states:

The act of an officer committed on the occasion of his attempt to make an arrest, or the act of a person about to be arrested by the officer, although otherwise amounting to an assault or battery, may be justified by the right of self-defense. The courts generally hold that the right to resist an unlawful arrest is a phase of the right of self-defense. Since an officer is a trespasser if he attempts to make an arrest without a warrant where he is not authorized to do so, if a person resisting such arrest is accused of assault and battery by so doing, he should be acquitted, if he did not use excessive force in defending himself or his property. However, not every kind of resistance to an unlawful arrest by an officer qualifies as self-defense justifying an assault or battery against the officer. If an attempted arrest is unlawful, the party sought to be arrested may use such reasonable force as is necessary to effect his escape, but no more; he cannot do this by using or offering to use a deadly weapon, if he has no reason to apprehend a greater injury than a mere unlawful arrest. The person sought to be arrested is justified in taking the life of the arresting officer only when he has reasonable ground to apprehend that he is in imminent danger of death or great bodily injury, and is not justified in killing merely for the purpose of resisting an unlawful arrest or other restraint upon his liberty, where the only injury which could be reasonably apprehended is an unlawful detention for a short time or other injury short of death or great bodily harm.

6A C.J.S. Assault and Battery § 92, p. 481 (1975) states in pertinent part:

In view of the rule that no crime is committed by lawfully resisting the commission of a crime upon one’s person, one who is arrested may, in self-defense, use as much force as is necessary to repel undue violence on the part of the officer, and except as otherwise provided by statute, he may employ force to prevent the arrest if the same is illegal. Thus one wrongfully arrested and held without a warrant may resist, and use all the force which is necessary to free himself, on the facts as they reasonably appear to him;

See also Wilkinson v. State, 143 Miss. 324, 108 So. 711 (1926); Smith v. State, 208 So.2d 746 (Miss.1968); Ferguson v. State, 242 So.2d 448 (Miss.1970).

Courts have generally held that a third party may interfere in the resistance of an unlawful arrest. This privilege is, however, strictly dependent upon the rights of the party sought to be arrested. E. Fisher, Laws of Arrests 374-375 (1967); W. La-Fave & A. Scott, Handbook on Criminal Law § 54 (1972); 6A C.J.S. Assault and Battery § 93, p. 484-485 (1975) provides as follows:

It is generally held, under the view that one who goes to the aid of a relative or third person acts at his own peril, that the right to interfere in aid of another is limited to an interference in aid of a lawful resistance by the person threatened, and the right of a person to defend another does not ordinarily exceed such person’s right to defend himself, except, perhaps, in the case of defense of children. . . .
One may use, in defense of a third person, so much force as reasonably appears to be necessary, although, in fact, none is necessary, and he is not required to nicely gauge the proper quantum of force; nor is it necessary that the danger be actual if accused had reason to believe, and did believe, that it was actual and imminent.

See also Rogers v. Huber, 239 So.2d 333 (Miss.1970) where this Court held in a civil suit that an assistant coach could come to the aid of the head coach in an altercation where he did not use unreasonable force even though the head coach was not in immediate danger of great bodily harm.

We conclude, therefore, that McBeath had a right to reasonably resist the unlawful arrest and that appellant could aid him in resisting that arrest by force not to exceed McBeath’s privilege to defend himself.

The remaining assignments of error are without merit.

We find for the above reasons and from a review of the entire record that the arrest was unlawful and that jury instruction D-19 was improperly refused by the trial judge.

Therefore, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


text:
    George Ronald ULMER v. STATE of Mississippi.
    No. 52981.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Tullos, Tullos & Tullos, Eugene C. Tullos and Gary King, Raleigh, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and LEE, JJ.
   SMITH, Presiding Justice, for the Court:

George Ronald Ulmer was indicted for the crime of kidnapping pursuant to Mississippi Code Annotated section 97-3-51 (1972). He was tried and convicted in the Circuit Court of Smith County, and was sentenced to serve a term of six years in the penitentiary.

The facts of the case are largely undisputed. During the evening of January 28, 1980, Ulmer came to the home of Juanita Bryant. Mrs. Bryant was home with her two children and her husband was out of town at that time. Ulmer falsely identified himself as “Gregg Maddox” and asked if he could get some water since his car was running hot, even though he did not have a car.

Mrs. Bryant testified that while she was trying to get water for Ulmer, he stood at her doorway with his hands in his pockets giving her the impression that he had a gun. Thereafter, the defendant requested the use of a phone and since Mrs. Bryant did not have one at the house she agreed to take the defendant to the local store to use the phone there. Mrs. Bryant, along with her two children, then drove the defendant there only to discover that the store phone was not operating. Mrs. Bryant returned home, and said that on the return trip the defendant had told her that he had a gun in his pocket. When they arrived at the house, Mrs. Bryant refused to leave the car. Thereupon, the defendant directed her to drive him to where his alleged car was, although actually he did not have a car. While defendant was directing Mrs. Bryant to the location at which he said he had left his car, he reiterated that he did, in fact, have a gun. Mrs. Bryant drove for some time at appellant’s direction, becoming more and more alarmed. Finally, in desperation, Mrs. Bryant purposely drove her car into a ditch causing the defendant to become very angry. A struggle ensued, in the course of which Mrs. Bryant told her older child to run to a nearby house for help, which the child did. Whereupon, defendant told Mrs. Bryant that he “wanted” her, but shortly thereafter he abandoned the struggle. He then told Mrs. Bryant that he did not know what was the matter with him, told her to leave and got out of her car.

Appellant’s testimony was substantially the same as Mrs. Bryant’s, except that he said that he never told Mrs. Bryant that he had a gun and asserted that he never had any thought of raping Mrs. Bryant. Appellant’s testimony was substantially weakened by his statement given at the Smith County Sheriff’s office in which he had admitted that he had told Mrs. Bryant that he had a gun while they were looking for his non-existent car, and said that it had been his intention to rape Mrs. Bryant.

The older of the Bryant children also testified substantially to the same effect as had her mother.

The jury found Ulmer guilty of kidnapping under Mississippi Code Annotated 97-3-51 (1972). Ulmer appeals the conviction claiming that it is against the overwhelming weight of the evidence.

In Johnson v. State, 288 So.2d 842 (Miss.1974), this Court held that where one is forced to enter an automobile at gunpoint, and while confined therein is driven away against his will from a place where he has a right to be, along a route and to a destination unknown to his friends and acquaintances, he is, within the meaning of the statute, secretly confined. In the present case, although Ulmer did not force Mrs. Bryant to enter the car at gunpoint, having induced her to do so by false representations, she was effectively imprisoned in her car by his threat that he had a gun and by means of this implied threat of personal violence, forced her to drive to an unknown destination. Mrs. Bryant was thus deprived of her freedom, caused to be confined against her will, and forced to drive away from her home and family. It is of no consequence that the weapon was not openly displayed, it is sufficient that the defendant told his victim that he was armed and through threats of harm, express or implied, deprived the victim of her freedom.

The evidence in the present case clearly justified a finding by the jury that Ulmer, having inveigled Mrs. Bryant into her automobile, with intent to cause her to be secretly confined or imprisoned against her will, thereafter, by threat of force, deprived her of her liberty within the meaning of Mississippi Code Annotated section 97-3-51 (1972).

The evidence was sufficient to support the verdict of guilty of kidnapping as proscribed by Mississippi Code Annotated section 97-3-51 (1972).

AFFIRMED.

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

      . Repealed by Laws, 1980, ch. 394, effective from and after April 28, 1980.


author: BEATTY, Justice. JONES, Justice

text:
    Jimmy L. WRIGHT, etc. v. William E. ROWLAND, Individually and as an agent, Pressure Concrete Company and/or M. P. C. Leasing.
    80-214.
    Supreme Court of Alabama.
    Nov. 20, 1981.
    Gregory S. Cusimano and Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellant.
    Howard B. Warren, of Torbert, Turnbach & Warren, Gadsden, for appellees.
   BEATTY, Justice.

Plaintiff Jimmy L. Wright filed this action in Etowah Circuit Court against defendants William E. Rowland and Rowland’s employer, Pressure Concrete Company, seeking to recover damages for the wrongful death of his minor son, James Lewis Wright. The son was killed on March 22, 1978, while riding as a passenger on a motorcycle when one of Pressure Concrete’s trucks, being driven by Rowland, collided with the motorcycle. The jury returned a verdict for plaintiff and against both defendants in the amount of $15,-000.00. Plaintiff subsequently filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. Plaintiff appealed on December 22, 1980. We affirm.

On appeal plaintiff contends that the trial court’s oral charge to the jury constituted reversible error. Initially, the charge contained several references to the negligence of “either defendant” or “both defendants.” The attorneys for both sides objected that the instructions incorrectly indicated that Pressure Concrete, the employer, could be found liable without a finding against Rowland, the employee. In response to the objections the court gave the following instruction:

Ladies and gentleman, you could not return a verdict in this case against Pressure Concrete Construction Company unless you returned a verdict against Rowland also. And that amount could not exceed what the amount that would be assessed against Rowland [sic].

Plaintiff contends that this instruction did not correct the error originally objected to by the parties and, in effect, suggested that the jury apportion damages between the joint tortfeasors, Rowland and Pressure Concrete. In Alabama, however, damages cannot be apportioned between or among joint tortfeasors. Robbins v. Forsburg, 288 Ala. 108, 257 So.2d 353 (1971). Thus, according to plaintiff the last charge was erroneous and harmfully misleading.

On appeal, the entire charge must be reviewed to determine if there is reversible error. Price v. Jacobs, Ala., 387 So.2d 172 (1980). Read in its entirety and looking to the total effect of the charge we cannot say the jury was misled into apportioning damages or that plaintiff was prejudiced. During the course of the charge, the court stated:

When a principal or master is sought to be held liable for the actions of a certain agent, servant or employee, there can be no recovery against the principal or master unless there is recovery against the agent, servant or employee. And then only to the extent of the liability of such agent, servant or employee. A principal is liable to others for the negligent acts or omissions of his agent done within the scope of his employment and within the line of his duty. And when a master places at disposal of the servant a vehicle to be used by the servant in going to and from his work and such transportation arrangement is beneficial to both of them, the relation of master and servant continues while the automobile is used for such purposes. It is not denied or disputed in this case, ladies and gentlemen, that William E. Rowland was an employee of Pressure Concrete Construction Company and was acting for them at the time of the accident.

That charge is taken from Alabama Pattern Jury Instruction Number 3.05 (hereinafter APJI 3.05). The charge, when viewed as a whole, clearly explains that Rowland was acting within the scope of his employment at the time of the accident and that Pressure Concrete was vicariously liable for Rowland’s acts, if the jury believed Rowland was negligent. We find, therefore, that the giving of APJI 3.05 was correct under the facts of this case. Additionally, we note from the record that plaintiff failed to properly object to the trial court’s last instruction to the jury, Rule 51, ARCP, thereby failing to preserve the claimed error relating to that instruction.

Plaintiff also alleges that the trial court committed error in allowing John Wade, a superintendent for Pressure Concrete, to testify about skidmarks observed by him at the scene of the accident. Wade testified that the skidmarks “were a day or two old, at least. They were faded pretty bad. Didn’t look to be fresh at all.” Plaintiff contends that the testimony is inadmissible opinion evidence because it touches matters that the jury is as competent to judge as the witness.

The general rule is that witnesses must testify to facts and cannot express mere matters of opinion. McPherson v. Martin, 234 Ala. 244, 174 So. 791 (1937). There are, however, exceptions to this rule. When a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or if, from the nature of the particular fact, better evidence is not attainable, the opinion of a witness, derived from observation, is admissible. Dyer v. Traeger, Ala., 357 So.2d 328 (1978). If, indeed, this testimony constituted opinion evidence it falls within this exception. Additionally, the witness’s statements concerning the appearance of the skidmarks were a shorthand rendition of collective facts. Cf. Johnson v. Martin, 255 Ala. 600, 52 So.2d 688 (1951); 9 Ala.Dig., Evidence, § 473. The trial judge properly instructed the jury that Wade’s testimony was that of a lay witness whose conclusions were not binding upon them. It was for the jury to determine the weight to accord that testimony. In any case, the testimony did not prejudice plaintiff in view of the verdict in his favor.

No reversible error having been shown, the judgment entered below is affirmed.

AFFIRMED.

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

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I agree but I would not address the second issue raised by Appellant because this issue goes to the question of liability. The Plaintiff won on that issue below.


author: EMBRY, Justice.

text:
    Alice E. ACKLEY v. Viola I. LOUGHLIN.
    79-924.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Rehearing Denied Oct. 30, 1981.
    Jack Caddell, Decatur, for appellant.
    Charles B. Langham, Decatur, for appel-lee.
   EMBRY, Justice.

Alice Ackley appeals from final judgment ordering her removal as trustee of a trust created by the will of Chester W. Loughlin. The trust officer of Central Bank of Alabama was substituted for her and appointed trustee. This action was commenced by Viola I. Loughlin, the widow of Chester W. Loughlin, against her stepdaughter (the testator’s daughter), Alice Ackley, seeking her removal as trustee.

Chester W. Loughlin died testate on 4 April 1979. His will provided for the appointment of his widow as executrix but she renounced the appointment in favor of Alice Ackley. The will also provided:

... In the event my wife, Viola I. Lough-lin, shall survive me, then I give, devise and bequeath the entire of my estate, whether real, personal or mixed and wheresoever situated unto Alice E. Ack-ley, nevertheless to be held in trust to be paid and distributed as follows under the conditions to be hereinafter mentioned:
(A) Pay to my wife, Viola I. Loughlin, the entire income from the trust periodically, but at least semiannually, with the right of the Trustee to invade the corpus of the trust for the beneficiary should the beneficiary suffer or be burdened by major medical, hospital or confinement expense during her lifetime.
(B) This trust shall terminate upon the death of the beneficiary named and the entire remaining corpus and so much of the income therefrom as may remain undistributed, shall become the property of Alice E. Ackley, to be hers absolutely.

The will was probated on 12 April 1979 and Mrs. Ackley began managing the assets of the estate. Friction developed between her and Mrs. Loughlin over Mrs. Ackley’s treatment of the assets and her payments to Mrs. Loughlin. For example, Mrs. Ack-ley withdrew the entire balance of five joint-with-survivorship bank accounts; four of them jointly with Mr. and Mrs. Loughlin and Mrs. Ackley, and one jointly with Mr. and Mrs. Loughlin. Mrs. Ackley deposited the proceeds in an account under her name as executrix. Mrs. Ackley later paid Mrs. Loughlin 50% of the money from the first four accounts and the entire balance of the fifth.

A further controversy arose over bank drafts drawn on Mrs. Loughlin’s checking account for payment of Mrs. Ackley’s electricity bills. The mistake seems to have been made by the electric utility, but Mrs. Ackley’s letters to her stepmother explaining the incident are extremely disrespectful and acrimonious. Moreover, the evidence shows that Mrs. Ackley had not reimbursed Mrs. Loughlin for the erroneous drafts by the time of the trial of this case. It was on the basis of these and other disputes over property of the Loughlin estate that this action was filed.

After an ore tenus trial, judgment was entered removing Mrs. Ackley as trustee on grounds of a conflict of interest, hostility between the parties, delays in furnishing of money to the widow, and a controversy concerning her unauthorized use of some of the assets of the estate.

Mrs. Ackley contends that removing her ' is error, relying largely on the decision of this court in Walker v. Amason, 369 So.2d 786 (Ala.1979). In that case the trial court removed the daughter of the testator as trustee for her widowed mother. This court reversed, holding that the trial court had abused its discretion. However, we find enough distinction in the facts in Walker and this case that we cannot conclude that here the trial court abused its discretion when it removed Mrs. Ackley.

In Walker, it was noted that a conflict of interest of which the settlor was aware would not suffice to warrant removal; however, the opinion went on to point out that “we do not find — and the Amasons do not contend — that there exists such hostility that a removal of the trustee is required or justified.” 369 So.2d 790-91. Here there was an abundance of evidence of such hostility as justified the removal of Mrs. Ackley. Among other things, she quite evidently treated her stepmother very highhandedly and arbitrarily.

Furthermore, the widow in Walker had resources such that she “did not lack for the necessities, and indeed enjoyed some of the luxuries available to an eighty-year-old woman.” Id. at 790. The trust in that case allowed for distribution of income in the sole judgment of the trustee. Mr. Lough-lin’s will required that income be paid at least semiannually. The record definitely supports the conclusion that Mrs. Loughlin needed this income for her support. The delays and controversies occasioned by Mrs. Ackley’s conduct found by the court below to have occurred, and supported by the evidence, are a sufficient hindrance to the purpose of the trust that we find no abuse of discretion in the trial court’s removal of Mrs. Ackley as trustee.

For the reasons stated the judgment below is due to be and is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.