text:
    Philip WRAY, Plaintiff-Appellant, v. Thomas Clinton COX, Defendant-Appellee.
    No. 8319.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 11, 1981.
    William Henry Sanders, Jena, for plaintiff-appellant.
    Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendant-appellee.

      Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

Philip Wray brought this suit to recover damages for personal injuries that he allegedly sustained in an automobile collision on July 7, 1979. The defendants are Thomas Clinton Cox, Government Employers Insurance Company (Cox’s liability insurer) and State Farm Mutual Automobile Insurance Company (plaintiff’s uninsured motorist insurer). The case was tried before a jury, which found that plaintiff had not been involved in an automobile collision on July 7, 1979. Judgment was accordingly rendered in favor of the defendants and against plaintiff, dismissing his suit at his costs. From that judgment, plaintiff appeals.

The sole issue on appeal is whether or not the trial judge erred in refusing to grant plaintiff’s motion for a continuance.

The record shows that plaintiff’s suit was filed on January 21, 1980. The trial began on Monday, October 13, 1980 and ended on Tuesday, October 14. The witnesses were placed under the rule of sequestration at the start of the trial. Well into the second day of the trial, plaintiff moved for a continuance on the ground that a material witness, Henry Wallace, had not appeared in court to testify. It was determined that on October 10, 1980 at 3:24 P.M. plaintiff had requested the issuance of a subpoena commanding Wallace to appear at the trial. The subpoena was issued on that date but was not served on Wallace until October 13, 1980 at 6:30 P.M. The summons ordered Wallace to appear at 1:00 P.M. on October 13, 1980. The trial judge denied plaintiff’s motion for a continuance on the ground that he had not exercised due diligence in securing the witness’ presence at the trial.

On appeal, plaintiff argues that since the witness’ absence was uncontrived, the granting of a continuance was mandatory under the peremptory grounds set out in LSA-C.C.P. Art. 1602, which provides:

“A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.”

The requisites for obtaining a continuance under LSA-C.C.P. Art. 1602 were recently discussed in Sather v. White, 388 So.2d 402 (La.App. 1st Cir. 1980) as follows:

“Art. 1602 makes the granting of a continuance mandatory. McCaleb v. Department of Public Safety, 309 So.2d 748 (La.App. 4th Cir. 1975). Several conditions must be met, however, before Art. 1602 will be applied. The material witness must have absented himself contrary to the wishes of the party seeking a continuance. That a subpoena has been issued is not alone a sufficient basis to invoke Art. 1602. Loicano v. Maryland Casualty Insurance Company, 301 So.2d 897 (La.App. 4th Cir. 1974). Materiality of the missing evidence must be demonstrated. Gallin v. Travelers Insurance Company, 323 So.2d 908 (La.App. 4th Cir. 1975), writ denied 329 So.2d 452 (1976). The party requesting a continuance must have exercised due diligence, yet been unsuccessful in obtaining the material evidence. Estopinal v. Thomas, 273 So.2d 54 (La.App. 4th Cir. 1973).”

We conclude that in light of those principles, plaintiff has not demonstrated that the trial judge erred in refusing to grant him a continuance under LSA-C.C.P. Art. 1602. His subpoena request was not made until three days before the trial, and he did not move for a continuance until the second day of the trial. Shortness of notice for the subpoena request and tardiness of the motion for a continuance have been recognized as grounds for denial of the motion. Sather v. White, supra; Thompson v. Warmack, 231 So.2d 636 (La.App. 3rd Cir. 1970).

For the above and foregoing reasons, the judgment appealed by plaintiff is appealed. All costs of this appeal are assessed against plaintiff.

AFFIRMED.

SWIFT, J., concurs.


source: Caselaw Access Project

author: SCHOTT, Judge. REDMANN, Judge,

license: Public Domain

text:
    Edward DELK, et al. v. BEL BUILDERS, INC. et al.
    No. 5-99.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1981.
    Michael Grennan, Law Offices of James J. Morse, New Orleans, for defendant-appellant.
    Gordon Hackman, Boutte, for plaintiff-appellee.
    Before REDMANN, SCHOTT and KLIE-BERT, JJ.
   SCHOTT, Judge.

This is before us on our own motion to show cause why this appeal should not be dismissed. The judgment on appeal ordered defendant, Bel Builders, Inc. to pay plaintiffs and their attorney $250 and costs for Bel’s failure to answer interrogatories.

In Speeg v. Stewart Title Guaranty Co., 381 So.2d 582 (La.App. 4th Cir. 1980) we held that such a judgment is interlocutory and unappealable.

Bel argues that this case should be governed by the same principle applied in Berrard v. American Employers Insurance Company, 246 So.2d 687 (La.App. 1st Cir. 1971) in which counsel for plaintiff was cast for attorney’s fees in favor of defendants because of his failure to cooperate in discovery proceedings. Because the judgment was not against a litigant and counsel alone was appealing from the judgment holding him responsible for the penalties the court held that it was a .final judgment as distinguished from the line of jurisprudence holding that such judgment against a party is interlocutory. Bel argues that since the judgment herein is in favor of both plaintiff and his attorney the same reasoning as in the Berard case should apply.

We disagree. The Berard case is inapplicable since the party cast in judgment here is a litigant. Inclusion of attorney for plaintiff with the plaintiff as a party in whose favor the judgment runs does not distinguish the case from Speeg and the cases on which that decision was based.

Accordingly, this appeal is now dismissed at the cost of Bel Builders, Inc.

APPEAL DISMISSED.

REDMANN, J., concurring.

REDMANN, Judge,

concurring.

Although I remain of the view that this court’s original opinion in Speeg at 377 So.2d 589 (La.App.) is correct, I am bound to follow the contrary en banc decision on rehearing.


author: GARRISON, Judge.

text:
    Stanley COHEN, M. D. and Louis Kenneth Cohen, M. D. a Professional Medical Corporation v. AUDUBON CONSTRUCTION CORPORATION.
    No. 11737.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1981.
    Steeg & O’Connor, Randy Opotowsky, New Orleans, for plaintiffs-appellants.
    Dodge, Friend, Wilson & Spedale, Joseph E. Friend, New Orleans, for defendant-ap-pellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiff’s suit to compel arbitration on a .construction contract. The judgment contains a statement that the case was dismissed on an exception of no right of action. The reasons for judgment, however, refer to an exception of prescription.

Plaintiffs contend that the question of prescription must be decided by the arbitrator and not by the court. They rely on jurisprudence which holds that the only issues properly before the court are:

1. whether the parties have agreed to arbitration, and
2. whether or not the other party refused to submit to arbitration.

We reject that argument because the question of prescription must first be resolved before the court can determine if there is a viable contract to arbitrate. If prescribed, the contract is no longer binding and there is no arbitration agreement to enforce.

Appellant alleges that when the hearing was held at the trial court level, no argument, testimony, or evidence were presented on the issue of prescription, so that the trial court rendered this judgment without a hearing on the exception. Additionally, there is no transcript of the April 10 hearing contained in the record.

On appeal, both parties argue the law of prescription and the facts and merits of the case in their briefs. There is some indication that there were prior repairs to the building by defendant over a period of time and that the damages complained of may not have been immediately apparent but rather of a slowly developing nature. Either of these conclusions will have a bearing on the issue of prescription; however, no facts are in evidence in the record. If this case has prescribed, then it should, of course, be dismissed; however, there are no facts in the record which show that the case has prescribed.

Due to the lack of evidence, the judgment of the district court is vacated, annulled and set aside and the ease is remanded.

ANNULLED, SET ASIDE AND REMANDED.


author: LOTTINGER, Judge.

text:
    Lionel WILSON v. Duane S. WILLIS, et al.
    No. 14590.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 1981.
    Gordon Hackman, Boutte, for Wilson.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This matter is before us on our grant of certiorari to review the trial court’s refusal to consider the application of plaintiff-relator to proceed in forma pauperis.

Plaintiff’s suit seeks recovery of damages allegedly resulting from a vehicular collision. He attached to his petition affidavits (his own and that of a third person) of his poverty and inability to pay court costs in advance, or as they accrue or to provide security therefor. Based solely on the fact that plaintiff-relator had not complied with Rule XVIII of the Twenty-Third Judicial District Court, the trial judge refused to consider the question of whether plaintiff was entitled to litigate in forma pauperis. We issued alternative writs of mandamus, certiorari and prohibition directing the trial court to consider and act upon relator’s application to proceed in forma pauperis based on Rule XVIII of the Twenty-Third Judicial District Court as same appeared in La.Ct. Rules Pamph. 1981, and citing Raymond v. Zeringue, 386 So.2d 1052 (La.App. 4th Cir. 1980) writ denied 391 So.2d 454 (La.1980).

The trial judge has taken the alternative and filed a brief pointing out that on December 1, 1980, effective January 1, 1981, the judges of the Twenty-Third Judicial District Court amended Rule XVIII to read as follows:

“Before ordering the filing of a suit in forma pauperis, the Court shall satisfy itself of the litigants [sic] right to proceed in this manner. As an aid to the Court in making this determination, the plaintiff shall attach to his petition a notarized affidavit setting forth facts concerning applicants net worth, including by way of illustration but not by limitation, all property, movable and immovable owned by applicant and the value thereof, the applicant’s earnings for two years preceding the date of filing of the petition, the indebtedness of the applicant, the needs of the applicant and those dependent on him, etc. If the information contained in the notarized affidavit fails to convince the court of applicant's right to proceed in forma pauperis the court will deny the application or permit the applicant and his or her attorney an opportunity to appear before the court on a date and hour fixed by the Court to supplement the information contained in the notarized affidavit. An affidavit executed by the applicant or a third party simply certifying to applicant’s inability to pay if not supported by facts upon which to base the conclusion that applicant is unable to pay cost shall not be considered.”

We do not find the requirement that in applying to the trial court to proceed in forma pauperis that the plaintiff file an affidavit setting forth a list of his property and its value, his earnings for the preceding two years, the indebtedness, and his needs or those dependent upon him places an undue burden on the party seeking to proceed in forma pauperis nor does it go beyond the provisions of La.C.C.P. art. 5183. In Futch v. Coumes, 347 So.2d 1121 (La.1977) the Supreme Court, in discussing Article 5183 said “the court may inquire into the facts at the time the motion is presented to him, either of the applicant’s attorney or (presumably) through a questionaire required of the litigant; and, if then not satisfied, the court may deny the privilege sought by the applicant.”

Therefore, for the above and foregoing reasons, the writ issued by this court on May 20, 1981 is recalled and vacated at relator’s costs.

WRIT RECALLED.


author: SAMUEL, Judge.

text:
    Sandra Holmes, wife of George A. LE BLANC v. George A. LE BLANC.
    No. 12312.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1981.

      Michael J. Moran and Rebecca B. Macke, Metairie, for plaintiff-appellee.
    Melvin C. Zeno, Marrero, for defendant-appellant.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

This is an appeal from a judgment on a rule filed by appellant. The judgment altered visitation rights in favor of appellant and dismissed his motion to hold his wife in contempt of court for interfering with visitation rights previously granted him.

On our own motion, we issued a rule to show cause why the appeal should not be dismissed for lack of jurisdiction by this court resulting from an apparent defect, i. e., that the appeal was not taken timely.

Appellant’s rule was heard in the trial court on September 5, 1980. After hearing the evidence, the court rendered judgment from the bench in the presence of the parties and their attorneys. The judgment was signed on October 7, 1980. Neither attorney requested notice of the signing of the judgment. Appellant did not apply for a new trial. He filed his motion for a devolutive appeal on December 5, 1980.

Appellant argues he is entitled to a sixty day appeal period under Code of Civil Procedure Article 2087 instead of the period allowed by Code of Civil Procedure Articles 3942 and 3943. Article 3942 allows only a thirty day appeal period “from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce”, and Article 3943 reads as follows:

“An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.” LSA-C.C.P. Art. 3943.

Our jurisprudence has concluded that the term “custody” as used in Article 3943 also includes visitation privileges, and an appeal from a judgment concerning visitation privileges must be perfected within the thirty day delay. Although appellant had seven days (“commencing to run on the day after the judgment was signed”) to apply for a new trial before this appeal period began to run, clearly his appeal was not taken within the thirty day delay.

Appellant also argues his appeal was timely because notice of signing of the judgment was not sent to or served on him, and under Code of Civil Procedure Article 1974 the delay for applying for a new trial commences to run on the day after the clerk mailed a notice of judgment as required by Code of Civil Procedure Article 1913. Thus, he further argues the delay for taking his appeal did not commence to run until after the expiration of the delay for applying for a new trial.

This argument is without merit. The second paragraph of Article 1974 specifically states “When notice of judgment is required under Article 1913,” the delay for applying for a new trial begins to run on the day after the notice of judgment has been mailed or served. And under the facts of this ease notice of judgment was not required under Article 1913, which reads in full:

“Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.
Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.
If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.
Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.” LSA-C.C.P. Art. 1913.

Here, the record reflects that at the conclusion of the trial the case was not taken under advisement. The court did not sign a judgment at that time. As we also have pointed out, the record further shows neither attorney made a request of record for notice of the date when the judgment was signed. Hence, the clerk was under no duty to mail notice of signing of the judgment and the thirty day appeal delay had run before the motion for appeal was filed.

We hold appellant’s appeal from that portion of the judgment setting forth visitation privileges was not taken timely and, consequently, this court is without jurisdiction to consider or decide the matter.

Finally, appellant argues he is entitled to .the sixty day appeal period allowed for a devolutive appeal under Article 2087 because his appeal also involves the trial court’s refusal to hold his wife in contempt of court for allegedly interfering with his visitation privileges.

In fact, the appellant is without standing to appeal the trial court’s refusal to hold his wife in contempt.

For the reasons assigned, the appeal is dismissed.

APPEAL DISMISSED.

      . See Code of Civil Procedure Article 1913.

      . Kreshel v. Kreshel, La.App., 326 So.2d 887; Lewis v. Lewis, La.App., 148 So.2d 420, relying on Downey v. Downey, 183 La. 424, 164 So. 160.

      . LSA-C.C.P. Art. 1974.

      . In addition, with some exceptions, the firm judicial rule is that a judgment of contempt is not appealable even by the litigant who has been held in contempt. Such a litigant can obtain review of his conviction only by an application for writs. See McMicken v. Perin, 61 U.S. 20 How. 133, 15 L.Ed. 857; State v. Louisiana Public Service Commission, 161 La. 293, 108 So. 487; City of Gretna v. Rossner, 154 La. 117, 97 So. 335; State v Judge Parish Court, 31 La.Ann. 116; Succession of Carriere, 34 La.Ann. 1056; Matter on Carter, La.App;, 357 So.2d 1175, writ denied, La., 358 So.2d 949;
        Pasternack v. Lubritz, La.App., 280 So.2d 352; Wall v. Wall, La.App., 230 So.2d 420; The Advertiser v. Tubbs, La.App., 199 So.2d 426; Weaver v. Weaver, La.App., 181 So.2d 61, writ denied, 248 La. 1031, 183 So.2d 652; Moity v Mahfouz, La.App., 137 So.2d 513, writ denied, 242 La. 625, 137 So.2d 514; and State v. Tangipahoa Parish School Board, La.App., 9 So.2d 826. Contra, see Frazier v. Frazier, La.App., 374 So.2d 198; City of Monroe v. Evans, La.App., 385 So.2d 912, and cases cited therein. It should be noted that the first group of citations (which could be increased) contain cases handed down by the Supreme Court of Louisiana, while the latter group do not.


text:
    Henry L. MULLER v. Peter GIACONA and Angelo Marsalone and Cinnamon Tree, Inc.
    No. 10918.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1981.

      Leo S. Roos and Sidney M. Bach, New Orleans, for Angelo D. Marsalone, third party plaintiff-appellant.
    Martzell, Montero & Lamothe, John R. Martzell and Janine Syll Dingleman, New Orleans, for Brian Investments, Ltd. and James G. Anthony, third party defendants-appellees.
    Sam J. Recile, in pro. per.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   SAMUEL, Judge.

This matter originated as a suit on two promissory notes by plaintiff, Henry L. Muller, against the maker of the notes, Cinnamon Tree, Inc., and two endorsers, Angelo D. Marsalone and Peter Giacona. One note was executed on January 16, 1976 in the amount of $70,000 and was endorsed by Marsalone and Giacona. The other note, in the amount of $30,000, was executed on March 23, 1976 and was endorsed by Mar-salone only.

Marsalone answered, asserting numerous defenses to plaintiff’s suit, including lack of adequate consideration and invalid endorsement. In the alternative, he also filed a third party demand seeking indemnity against James Anthony, Sam J. Recile, and Brian Investment Ltd., alleging they had agreed to indemnify him from any outstanding liability by Cinnamon Tree to plaintiff. Those third party defendants answered, generally denying Marsalone’s third party petition.

Marsalone admitted liability on the principal demand and, after trial on the merits of his third party demand, judgment was rendered against him, dismissing his third party demand against Anthony, Recile, and Brian Investment. Marsalone has appealed.

At the outset third party defendants move for a dismissal of the appeal on the ground it was not perfected timely. The record reveals the trial court’s judgment denying appellant’s motion for a new trial was signed on September 25, 1978. The motion for appeal was filed on November 22, 1978, but the order of appeal was not signed by the trial judge until November 27, 1978. Third party defendants argue the appeal was not properly perfected under Code of Civil Procedure Article 2087 because, although the motion was filed timely, the order of appeal was not signed until more than sixty days after the court’s refusal to grant a new trial.

Under the same circumstances we recently have held, and the Supreme Court has affirmed, when a motion for appeal is filed timely any delay by the clerk or the trial judge in connection with signing the order of appeal is not imputable to the appellant and does not result in a dismissal of his appeal. The record shows defendant’s motion was filed timely, and consequently the trial judge’s delay in signing the order is no longer of legal import.

The basis for appellant’s claim against third party defendants for indemnity is a letter dated May 11, 1976, which was executed by Brian Investment and appellant. This letter agreement is quite extensive, and sets forth at least ten separate transactions between those two parties. Although appellant cites as error the trial judge’s refusal to allow introduction of evidence under the other paragraphs dealing with separate, independent transactions, our examination of the letter at length reveals only Paragraph 5 thereof has any relevance to the case at hand. Paragraph 5 reads:

“Brian agrees to purchase 51% of the capital stock in Swanson’s Restaurant, Inc. or Cinnamon Tree, Inc. [which operated Swanson’s], from me and the other stockholders and agrees to hold me harmless on account of any indebtedness in connection therewith, this being with the distinct understanding that I am able to retain approximately 20% of the stock of the said Corporation, provided that I am able to get the other stockholders to agree to join with me in any sale upon similar terms.”

In his reasons for judgment, the trial judge found as a fact that no indemnity agreement existed between appellant and third party defendants under the quoted portion of the May 11, 1976 letter because the conditions stated in Paragraph 5 were never met and, consequently, an indemnity agreement involving Cinnamon Tree never was perfected.

In addition to assigning as error the trial judge’s restriction of evidence to Paragraph 5 of the May 11 letter, appellant also argues the trial judge committed error in failing to require a return on a subpoena duces te-cum, and he contends the judgment rendered was clearly contrary to the weight of the evidence.

First, the trial judge was correct in limiting the evidence to Paragraph 5 of the May 11 letter agreement quoted above. That agreement on its face contemplated numerous transactions between appellant and Brian, each involving separate properties or investments and each having its own consideration for a promise of indemnity. Appellant appears to argue, without citation of legal authority, that proof of fulfillment of the conditions in other paragraphs of the agreement indirectly would prove fulfillment of the conditions set forth in Paragraph 5 and thus render that part of the agreement enforceable.

We agree with the trial judge that each of the separate agreements contained in numbered paragraphs of the May 11 letter stands on its own, and proof of fulfillment of conditions in other paragraphs of the agreement have no relevance whatever to fulfillment of the suspensive condition contained in Paragraph 5. The trial judge did not commit error by limiting evidence to compliance with the provisions of Paragraph 5.

Next, appellant argues the trial judge did not act properly in handling the return on a subpoena duces tecum served by him on Brian Investment. On the first morning of trial, the judge ordered Brian Investment to bring certain documents to court the next morning. He did not order all documents subpoenaed to be brought, but selected those which should be produced. Appellant made no objection to the ordered partial return of the subpoena duc-es tecum. Moreover, he did not call for a return on the subpoena until later in the week, even though the documents were produced in accordance with the court order. Under these circumstances, we can only conclude the appellant acquiesced in the ruling and cannot argue on appeal for the first time that a proper return of the subpoena duces tecum was not made. In addition, the. burden was upon appellant to call for a return of the subpoena, and by failing to do so timely, he cannot now argue prejudice thereby.

The final issue is whether appellant proved an enforceable indemnity agreement on the Cinnamon Tree obligation between himself and the third party defendants.

Paragraph 5 of the letter agreement of May 11, 1976, quoted above, provides that Brian Investment agrees to purchase 51% of the capital stock in Cinnamon Tree (or Swanson’s Restaurant) from appellant and the other stockholders and agrees to hold defendant harmless from any indebtedness in connection with Cinnamon Tree, if (1) appellant retains approximately 20% of the stock of the corporation, and if (2) appellant is able to obtain cooperation of the other stockholders to sell on similar terms.

The language of the document appears to have been confected in such a way because on May 11, 1976 appellant was the owner of 53% of the shares of Swanson’s and 43% of the shares of Cinnamon Tree. The remainder of the stock in both corporations were owned by Henry Muller, Peter Giacona, and James Anthony. Therefore, as of May 11, 1976, appellant would have been unable to perform in accordance with the terms of Paragraph 5 since he could not have simultaneously transferred 51% of the shares of the corporation and maintained ownership of an additional 20%. It is clear from the face of the document that the hold harmless agreement by Brian Investment was conditioned upon the sale to it of 51% of the shares of stock, and the ability of appellant to obtain the agreement of the other shareholders to join in the sale on similar terms, with appellant retaining 20% of the remaining stock. If these conditions had been met, then Brian Investment would have been bound to hold defendant harmless. But, as found by the trial judge, and we agree with that finding, these conditions were not met and the hold harmless provision never came into effect.

There is nothing in the record to indicate any agreement by Recile or Anthony individually to indemnify appellant. Both in deposition and at trial, appellant insisted his rights to indemnity emanated from Paragraph 5 of the May 11 letter, which makes no reference to Recile or Anthony. The document was signed by Recile, but only as president of Brian Investment, and it was not executed by Anthony in any capacity. Having admitted his claim for indemnity arose only out of a written agreement, evidence of any oral indemnity agreement (even if such an agreement would be enforceable) is not admissible. Hence, there is no basis in the record for any claim by appellant against Recile or Anthony in their individual capacities.

The primary basis for appellant’s contention that the third party defendants agreed to indemnify him is his insistence that on May 11, 1976 he conveyed all the stock to Brian Investment by use of a separate “stock power.” He thus contends that on the same day of the written agreement he waived the conditions of that agreement in his favor by actually making a written transfer of the stock subject to the agreement.

It is questionable whether any such stock power would have been effective in the present case since the stock allegedly transferred by the stock power was “lettered” stock upon which there was a covenant, incorporating a portion of the articles of incorporation, to afford the other stockholders the right of first refusal to the stock before it could be transferred to a third party. The record does not indicate compliance with the condition on the “lettered” stock, and it is highly doubtful that the alleged stock power would have been sufficient to meet the terms of the May 11, 1976 letter. The trial judge did not decide this question, nor did he address the question of whether appellant could unilaterally alter the written terms of the May 11 letter agreement by simply endorsing a stock power. Instead, he found as a fact that the stock power had never been executed and the transfer of the stock had never occurred.

The alleged stock power as not produced at the trial, nor was any secondary evidence in the form of witnesses to the alleged document offered to establish its existence. Recile testified the stock power never existed. Brian Investment produced a stock power relating to the transfer of stock in Courtney Corporation, Inc., the subject of Paragraph 2 of the May 11, letter agreement. Defendant himself produced a copy of a stock power relating to Mony Oil & Gas, Ltd., covered under Paragraph 3 of the May 11 agreement. Appellant attempted to explain the absence of his copy of the stock power relating to Swanson’s and Cinnamon Tree by stating these documents were stolen in a burglary of his office. However, he testified the stock powers were witnessed by two individuals known to him, neither of whom was called as a witness, and whose absence he did not attempt to explain. In his reasons for judgment, the trial judge concluded the absence of these witnesses raised the inference that their appearance would have produced testimony unfavorable to appellant’s position. We agree with this conclusion.

Further, a May 21, 1976 letter was introduced into evidence in which there were statements clearly indicating the agreement to transfer 51% of the shares of Swanson’s had not been completed. This letter was accepted and approved by appellant’s signature on May 21, 1976, thereby further indicating the correctness of the statements contained in it, which statements contradict his assertion that he had transferred 51% of the shares of Swanson’s and Cinnamon Tree on May 11, 1976 by written stock power.

Finally, an August 9, 1976 letter from defendant’s then attorney to Brian Investment was admitted into evidence. This letter states the sale and transfer of the stock in Cinnamon Tree and Swanson’s by appellant to Brian Investment had not yet occurred as of that date and was yet contemplated, subject to approximately 15 conditions set forth in the letter. Appellant’s attorney himself testified he was unaware that any stock power transferring the shares of Swanson’s or Cinnamon Tree to Brian Investment had been executed. He further stated he would not have written the letter had he known of such a transfer.

Moreover, in an undated document, appellant called for a shareholders’ meeting of Swanson’s and in that letter he represented himself, together with Giacona, as a holder of more than 20% of the outstanding stock in Swanson’s. Even though the document was undated, both Anthony and appellant himself testified this document was executed within 10 days of October 8, 1976.

The trial judge’s conclusion that no transfer of the stock in question had taken place is amply supported by the evidence. This court itself has made a similar finding in First Nat. Bank, etc. v. Louisiana Purchase. Accordingly, we conclude there is not sufficient evidence in the record for us to entertain a reversal of the trial judge’s findings of fact.

For the reasons assigned, the motion to dismiss the appeal is denied and the judgment appealed from is affirmed.

AFFIRMED.

      . Scales v. State, La.App., 391 So.2d 871.

      . Scales v. State, handed down by the Supreme Court of Louisiana on May 18, 1981, and as yet unreported.

      . See Troxlair v. Illinois Central Railroad Company, La.App., 291 So.2d 797.

      . Compare, Heiss v. Corcoran, 15 La.Ann. 694.

      . Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875.

      . For a discussion of such an inference, see Burt v. Hebert, La.App., 338 So.2d 717.

      . La.App., 346 So.2d 345.

      . See Canter v. Koehring Company, La., 283 So.2d 716.


author: SAMUEL, Judge. ■

text:
    PUBLIC EMPLOYEES ASSOCIATION OF NEW ORLEANS, INCORPORATED and Brian Eastwold as President and Individually and on behalf of all Similarly situated City Employees, Employed by the City of New Orleans, who are Members of said Organization v. CITY OF NEW ORLEANS, Ernest N. Morial, Reynard J. Rochon and Errol G. Williams.
    No. 11327.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1981.

      Clyde P. Martin, Jr., New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., and Michael A. Starks, Deputy City Atty., New Orleans, for defendant-appellee.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   SAMUEL, Judge. ■

Plaintiff, a classified employee of the City of New Orleans, filed this suit individually, as president of the Public Employees Association of New Orleans, Inc., and on behalf of all employees of the City of New Orleans similarly situated, to enjoin the City of New Orleans, its Mayor, Chief Administrative Officer, and Director of Finance from requiring that he and other city employees fill out a questionaire aimed at determining, among other things, whether they were employed in other occupations.

Defendants answered, admitting the allegation in which the facts of the case were pleaded. The matter was submitted to the court on the basis of those facts as alleged in the petition, together with testimony of Errol G. Williams, the defendant Director of Finance, which added little to the admitted facts.

The trial judge originally issued a temporary restraining order with respect to petitioner individually and the preliminary and permanent injunctions were tried together by stipulation. Following trial, there was judgment in favor of the defendant, dismissing plaintiff’s suit. Plaintiff has appealed.

The admitted facts are: On December 31, 1969 the Chief Administrative Officer of the City of New Orleans promulgated policy memorandum No. 23 which required all employees to submit a report concerning their outside employment. Since that date petitioner “has submitted a report, in compliance with the said policy memorandum number 23, copies of which are enclosed herewith, as Exhibits ‘B’ and ‘C’.” On January 23, 1979, petitioner received an interoffice memorandum stating he was not in compliance with memorandum No. 23, and he was threatened with disciplinary action by the Director of the Department of Finance if he did not comply.

In response to the request of plaintiff’s attorney, the city attorney’s office rendered an opinion concluding that memorandum No. 23 was legal and did not violate plaintiff’s right to privacy or his right against self incrimination. On June 13,1979 and on June 15,1979 plaintiff received communications from the Director of the Department of Finance ordering him to complete the questionnaire and stating he would be suspended if he did not comply.

The questionnaires attached to the petition called for the nature of the employee’s outside employment, the hours devoted to that employment, the name of the outside employer, and the date of that original employment. As shown by the exhibits attached to plaintiff’s petition, he did not answer any of the questions propounded in the questionnaires; on the bottom of the questionnaires he simply stated: “I am not employed by any other municipality, state, or government. Title 14 Sect 137 La. Revised Statutes”. (LSA-R.S. 14:137 is the dual office holding statute.)

Errol G. Williams, Director of the Department of Finance, testified: His primary concern in having the questionnaire fully executed by his employees was to prevent possible conflicts of interest. The plaintiff in this case is charged with enforcing the sales tax ordinances of the City of New Orleans, and in that capacity is responsible for collecting taxes, serving warrants, and padlocking businesses. Because plaintiff has access to confidential city information, the questionnaire was pertinent in that he (Williams) could avoid sending plaintiff to one of his clients for enforcement action as that would create a conflict of interest. Additionally, he needed the information to avoid scheduling work for plaintiff which would conflict with his outside employment. Of 398 employees of the city Department of Finance, plaintiff was the only one who refused to fill out the questionnaire.

Plaintiff contends the questionnaire is an invasion of his right to privacy under Article 1, Section 5, of the Louisiana Constitution and that it deprives him of his right against self-incrimination under Article 1, Section 13, of the Constitution.

These constitutional provisions read as follows:

“Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.” La. Const. Art. 1, Sec. 5.
“Section 13. When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.” La.Const. Art. 1, Sec. 13.

Defendants argue the questionnaire does not violate the plaintiff’s right against self-incrimination. In Garrity v. State of New Jersey, the United States Supreme Court held that information obtained by a questionnaire under threat of disciplinary action cannot be used in a subsequent criminal proceeding, since such information is equivalent to a non-voluntary confession. Under the rationale of this decision, statements made in response to the questionnaire on penalty of petitioner losing his employment or undergoing other disciplinary action for not answering could not be used against him in a prosecution under R.S. 14:137, the dual office holdings statute.

With regard to the infringement of plaintiff’s right to privacy, defendants refer to cases of this court which have upheld the dismissal of police officers (also classified employees) who have refused to submit to polygraph examinations administered regardless of whether they were suspected of criminal conduct. Our reading of the questionnaire and the information called for in it does not indicate any greater invasion of petitioner’s privacy than the invasion of the privacy of the police officers dismissed for failure to submit to polygraphic examinations.

Plaintiff argues that while the courts are obliged to balance the need to promote and protect the integrity of public office holders with the need to preserve personal freedoms of the individual, the court should not uphold an overbroad intrusion into the personal rights of public employees. In so arguing, he cites the California case of Car-mel-by-the Sea v. Young, which struck down what that court considered an overly broad statute which required almost every public official and his family to disclose the nature and extent of investments which were in excess of $10,000.

Plaintiff points out the California statute indiscriminately . covered persons holding public office without regard to the kind of activities performed by them. On this point, the California case is different from the one now before us. The City of New Orleans clearly has an interest in the nature of outside employment by public employees in order to avoid conflicts of interest and related problems, particularly in areas where the public treasury is involved. The California court acknowledged the public’s right to know matters which might cause a conflict between public employment and private financial interests constitutes an area in which a legislative body may legitimately exercise its powers. We conclude such an area also is legitimate for the proper exercise of the executive branch in order to protect the integrity of public office.

For the reasons assigned, the judgment appealed from is affirmed. Plaintiff is to pay all costs.

AFFIRMED.

      . 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562.

      . See Frey v. Department of Police, La.App., 288 So.2d 410; Dieck v. Department of Police, La.App., 266 So.2d 500; Clayton v. New Orleans Police Department, La.App., 236 So.2d 548; Roux v. New Orleans Police Department, 223 So.2d 905.

      . 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225.


text:
    Rufus COBBS and Carl Carriere v. Warren BOURGEOIS, III and Government Employees Insurance Company.
    No. 11361.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1981.

      Kernan A. Hand, New Orleans, for plaintiff-appellee.
    Hammett, Leake & Hammett, Robert E. Leake, Jr., and Fritz M. Stoller, New Orleans, for defendants-appellants.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   SAMUEL, Judge.

Defendants appeal only on the issue of quantum. The judgment appealed from was rendered against the defendants in the sum of $13,036.95 for injuries received by plaintiff in an automobile collision. Medical expenses were proven as awarded, and appellant makes no complaint about the award for loss of wages. Thus, we are concerned here only with the $11,000 award for pain and suffering, which appellants contend is excessive.

Plaintiff was injured on December 19, 1975. He struck his left knee on the steering wheel, his neck snapped backward and forward and he felt pain in his back. He attempted to get medical attention at Charity Hospital but was ineligible and treated himself until seen by a doctor on January 5, 1976.

Dr. Mina Yumukoglu, the treating physician, testified: Plaintiff’s complaints on that first visit were limited to pain in the low mid-line area of the back and the left patella region. A complete physical was performed and x-rays of the left knee and lumbar area were taken. No restriction of motion or muscle spasms were noted. There was tenderness in the back area and over the anterior aspect of the patella. He concluded plaintiff sustained a moderate to severe strain of the back, and a strain and contusion of the knee. A knee support, bed rest, hot baths and local steam were recommended and a prescription for muscle relaxants and pain medication was given.

On January 12, there were no further knee complaints, but plaintiff still had pain in the back, and new complaints of pain in the neck and nervousness. Examination of the neck revealed a 5% limitation of motion, and there was a 10% restriction in the back. X-rays of the neck were taken, librium was prescribed and the use of a neck collar recommended.

On January 28, the examination was normal but plaintiff still had back complaints. He was told to continue medication and physical therapy. Bills submitted indicate plaintiff received fourteen physical therapy treatments from January 7, to February 12, 1976.

When last seen on March 15, 1976, the examination was negative but plaintiff still complained his neck hurt. He was advised to continue physical therapy. The physical therapy bill submitted does not indicate plaintiff followed this advice, nor does the record reflect that plaintiff returned to this or any other doctor for medical treatment between the date last seen until the time of trial some 2V2 years after the accident.

The lay evidence relative to plaintiff’s injuries was given by plaintiff and Lawrence Alexander, a former boy friend of plaintiff’s sister.

Plaintiff testified he still had back pain at the time of trial, that he had tried to get further medical treatment but did not have money to see a doctor and had lost his job as a result of the accident because he missed too much time from work. There is no evidence of how long plaintiff was unemployed after the accident but he worked later as a carpenter and on the riverfront and lost both jobs because of his criminal record. On the date of trial he was serving a term in parish prison where he works in the metal department. Part of his job involves mopping, and when he does this his back hurts.

Lawrence Alexander testified he is a deputy sheriff. He sees plaintiff in prison and knows he works in the prison hospital, and knows plaintiff has back trouble because plaintiff complains about his back “on and off". Alexander has tried to get medication for plaintiff for the back pain. There is no testimony that plaintiff received or requested medical treatment in prison, although presumably payment (which he claims precluded further medical treatment) would not be his problem there.

In summary, from the medical evidence, we conclude plaintiff had a contusion and strain of the knee which resolved itself within one month, and a moderate to severe back strain for which he received treatment for three months. The evidence convinces us that the injuries received in the accident were of a minor nature requiring only four visits to a doctor, physical therapy for 5 weeks, and with no residual disability.

In following the guidelines set for us by the Supreme Court in the case of Coco v. Winston Industries, Inc., we believe the record clearly demonstrates that the jury abused its discretion in making its award. We therefore reduce the award only to the extent of lowering it to the highest point which we believe is reasonably within the discretion afforded the trier of fact.

For the foregoing reasons, the judgment appealed from is amended so as to reduce the total amount awarded from the sum of $13,036.95 to the sum of $7,036.95. As thus amended, and in all other respects, the judgment appealed from is affirmed. Costs in this court are to be paid by plaintiff-ap-pellee.

AMENDED AND AFFIRMED.

      . The award was itemized as follows: Medical expenses, $536.95; lost wages, $1,500; pain and suffering, $11,000.

      . Testimony relative to his work was given by his employer’s business manager. Plaintiff had been employed by an automobile dealership since October, 1975 until his termination on January 14, 1976. He had missed a few days work after the accident but there was no notation in the records as to why plaintiff was discharged.

      . La., 341 So.2d 332.

      . The award of $11,000 by the jury for pain and suffering is reduced to $5,000.


author: WALKER, Justice, for the Court:

text:
    Danny JACKSON v. STATE of Mississippi.
    No. 52930.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Guy M. Walker, Laurel, for appellant.
    Bill Allain, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice, for the Court:

This is an appeal from the Circuit Court of Jones County wherein appellant, Danny Jackson, was convicted of aggravated assault upon a state highway patrolman and sentenced to serve ten years in the custody of the Department of Corrections. Appellant asserts that he cannot be guilty of aggravated assault, alleging the gun which he used was not a deadly weapon and was incapable of inflicting great bodily harm. Miss. Code. Ann. § 97-3-7(2) (Supp.1980).

The facts are undisputed. Highway Patrolman Joe Perry stopped to investigate after noticing appellant was slumped behind the steering wheel of his car on the shoulder of Highway 1-59. Appellant Jackson got out of the vehicle, and Perry asked him to stand at the rear of the car while he talked to the passenger in the vehicle. Perry testified he noticed a maroon shoulder bag and a syringe on the floor of the vehicle which contained a clear liquid. At that time appellant pulled what appeared to be a small calibre revolver from his pocket and fired several shots. Patrolman Perry sought cover behind an embankment on the side of the highway and shot at appellant as he fled into a wooded area. The Jones County Sheriff’s Department subsequently apprehended the appellant who said that he was under the influence of cocaine.

Later that afternoon appellant signed a Miranda waiver form and agreed to go back to the scene of the shooting and search for the gun. At the time of trial the revolver had not been found.

The two investigating officers testified that in response to their question concerning the type of gun used, appellant replied, “Well, it’s just a little old bitty .32 calibre, silver gun. A little bitty thing.”

Appellant, Danny Jackson, testified that he did not recall the conversation with these officers while they were going to look for the gun, but insisted that the gun was a .22 blank starter pistol.

Among other instructions, the jury was charged as follows without objection from either the defendant or the state.

INSTRUCTION NO. S-2
******
If you find from the evidence in this case beyond a reasonable doubt that the defendant, DANNY JACKSON, on or about the 15th day of April, 1980, did wilfully, unlawfully, feloniously, purposely and knowingly attempt to cause serious bodily injury to JOE PERRY, a human being, with a deadly weapon, to-wit: a pistol, while JOE PERRY was acting within the scope of his duty as a law enforcement officer for the Mississippi Highway Safety Patrol, then you shall find the defendant guilty.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty.
INSTRUCTION NO. 3-D
The Court instructs the jury that if you believe that the Defendant, Danny Jackson, used a weapon that under the circumstances was not capable of inflicting death or serious injury, then you cannot find him guilty of aggravated assault.
INSTRUCTION NO. 12-D
The Court instructs the jury that if you believe the State has failed to prove beyond a reasonable doubt that the weapon used by the Defendant was capable of inflicting great bodily harm, then, in that event, you still may consider the question of whether or not the Defendant is guilty of the lesser included charge of assault on an officer, the elements of which crime are that the Defendant placed the officer in fear of serious bodily harm, by intentionally firing a pistol loaded with blanks known as a starter pistol with the intent to put said officer in fear of imminent serious bodily harm, then you may find the Defendant guilty of assault instead of aggravated assault as charged in the indictment.

After deliberating, the jury returned its verdict of “We, the jury, find the defendant, Danny Jackson, guilty of aggravated assault on an officer.” We cannot say that the verdict is against the overwhelming weight of the evidence. Although the state had the burden of proving beyond a reasonable doubt that the gun was a deadly weapon, this is clearly a fact to be determined by the jury. Shanklin v. State, 290 So.2d 625 (Miss.1974). The testimony and inferences to be drawn therefrom were that the gun looked like a real pistol, sounded like a pistol when fired, and was used in a threatening manner, just as a deadly weapon would be used in similar circumstances. This evidence made out a prima facie case that the pistol was in fact a deadly weapon and therefore capable of inflicting death or serious bodily harm. Further, the appellant, a convicted felon, testified he was aware that it was unlawful for him to carry a deadly weapon, yet as he fled into the woods he threw the pistol away. If it was not a real pistol, he defeated his purpose in carrying a “starter pistol” by not keeping it to show to the officers. At no time prior to trial did appellant state to any police officer that the weapon used was a starter pistol, although appellant contends he related this to his attorney.

Under the facts presented, the jury was warranted in finding that the pistol appellant used was in fact a deadly weapon. The verdict of the jury and sentence of the court are affirmed.

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    Ervin M. OSBORNE v. STATE of Mississippi.
    No. 52793.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Hawkins & Henry, W. Eugene Henry, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of the Second Judicial District of Harrison County, Ervin Osborne was tried and convicted of carrying a concealed weapon after conviction of a felony. Osborne was sentenced to life imprisonment under the habitual criminal statute, Miss.Code Ann. § 99-19-83 (Supp.1980). Osborne appeals, assigning several errors, only four of which merit discussion.

On the morning of November 16, 1979, a Biloxi policeman went into the Little Apple Bar and noticed Osborne slumped over a table, apparently asleep. The police officer pould see the handle of a butcher knife and a part of the blade sticking out of Osborne’s pants at his waist. Osborne was placed under arrest for carrying a concealed weapon.

At trial Osborne testified that a few days before his arrest he had been chased and threatened by a man he knew. He claimed that on the night of this chase, he talked with two policemen and went to the police station and signed an affidavit against the man. The policemen did not recall such conversation and there was no record of complaints or affidavits by Osborne against anyone. On direct examination Osborne stated that he was carrying the knife because of his fear of the man who chased him.

On cross-examination Osborne changed his story testifying that on the day before his arrest he moved to a new apartment and that, in moving, he had too much to carry and stuck the knife in his pants. Osborne testified that he forgot about the knife in his pants when he went to work at the Little Apple Bar where, after work, he fell asleep. Osborne stated that the only reason he had the knife was because he had stuck it in his pants and forgotten about it.

Because of Osborne’s felony convictions he was sentenced under the habitual offenders statute. In 1961 Osborne pled guilty to attempted rape, and in 1970 he was convicted of two counts of burglary.

In his first assignment of error Osborne contends that because the habitual offenders statute subjected him to punishment of life imprisonment, he was charged with a capital offense and thus, was entitled under Miss.Code Ann. § 99-17 — 3 (1972) to twelve peremptory challenges to the jury. We have recently addressed this question in the case of Yates v. State, 396 So.2d 629 (Miss.1981). In Yates the defendant was charged with cattle theft and because of prior convictions, was subjected to the punishment of life' imprisonment under the habitual offenders statute. Yates claimed that he was entitled to a special venire under Miss.Code Ann. § 13-5 — 77 (1972) which provides for special venire when the defendant is charged with a capital crime. We held that the principal offense of cattle theft was not in the category of offenses for which one is entitled to a special venire or to twelve peremptory challenges.

Likewise, in the present case the principal offense of carrying a concealed weapon after a felony conviction is not a capital crime and not an offense which entitles the defendant to twelve peremptory challenges. The jury only determines the guilt of the accused on the principal offense and does not consider the prior convictions which bring into consideration the life sentence under the habitual offenders statute. The trial judge, in a separate hearing, determines the applicability of the habitual offenders statute and the sentencing. Thus, the special challenges to the jury allowed a defendant charged with a capital crime are not necessitated when the principal offense is noncapital. Thus this assignment is without merit.

Osborne next assigns as error the lower court’s refusal to grant part of his jury instruction concerning a defense to the crime of carrying a concealed weapon. The trial judge instructed the jury:

However, if you find beyond a reasonable doubt that the Defendant at the time and date charged and testified about did, in fact, carry a concealed weapon and you further find from the evidence that at such time he had been threatened and then and there had good and sufficient reason to apprehend a serious attack from his enemy and at that time he did so in fact apprehend such serious attack, then your verdict should be of not guilty.

Osborne contends the instruction was overly restrictive in requiring apprehension of an attack at the time he was carrying the concealed weapon. We have stated that no particular time or place of an expected attack is required to be shown in order to justify the carrying of a concealed weapon. Thomas v. City of Tupelo, 133 Miss. 166, 97 So. 522 (1923).

However, in the present case self-defense was not adequately raised. Osborne, testifying at length about the incident in which he was chased and threatened, stated only in response to questions on direct examination, that he was carrying the knife because of fear of an attack. On cross-examination, he testified that the only reason he was carrying the knife was because he forgot to remove it from his pants after moving to a new apartment. Thus, it seems that Osborne was not entitled to an instruction on self-defense and the instruction given was not error.

In his next assignment of error Osborne objects to his sentencing under the habitual offenders statute when the principal charge against him, in essence, is a misdemeanor. Punishment for the crime of carrying a concealed weapon, a misdemean- or, is enhanced when the defendant has previously been convicted of a felony. Under Miss.Code Ann. § 97-37-l(d) (1972), when any person previously convicted of a felony is convicted of carrying a concealed weapon, the punishment is imprisonment for one to five years.

This Court has recently rejected a challenge to this effect of double enhancement when the crime of carrying a concealed weapon after conviction of a felony is combined with sentencing under the habitual offenders statute. In Baker v. State, 394 So.2d 1376 (Miss.1981), we stated that the double enhancement rationale was not a convincing challenge to the constitutionality of Miss.Code Ann. § 99-19-83 (Supp. 1980) and did not constitute cruel and unusual punishment.

Osborne next complains of the use of his 1961 attempted rape conviction in applying the habitual offenders statute. Osborne claims that the attempted rape conviction was illegally obtained because the record was void as to whether or not he understood the consequences of a guilty plea.

The 1969 U.S. Supreme Court case, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), required that the records of conviction by a plea of guilty show a finding by the court that the plea was voluntarily and intelligently made. However, the Boykin decision was not retroactive and did not affect Osborne’s 1961 conviction.

This court has long required the trial judge to determine that guilty pleas were voluntarily made. Carlton v. State, 254 So.2d 770 (Miss.1971). Until Boykin, the determination by the judge was not required to be a part of the record. A judgment raised a presumption that “what ought to have been done by the trial judge with respect to receiving such plea was done.” Bullock v. Harpole, 233 Miss. 486, 495, 102 So.2d 687, 691 (1958).

At Osborne’s sentencing hearing, he was questioned about the circumstances of his guilty plea by both attorneys and by the trial judge, but he could not remember anything about the earlier conviction. On these facts the action of the trial judge in the attempted rape conviction must be assumed to have been correct. Thus, in our opinion, the conviction of attempted rape was not illegally obtained and was properly used in determining sentencing under the habitual offenders statute.

Osborne next complains of the failure of the State to specify in the indictment which section of the habitual criminal statute, Miss.Code Ann. § 99-19-81 or § 99-19-83, applied to him. Osborne argued for application of the rule stated in White v. State, 374 So.2d 225 (Miss.1979), that “when the facts which constitute a criminal offense may fall under either of the two statutes, or when .there is substantial doubt as to which of the two is to be applied, the case will be referred to the statute which imposes the lesser punishment.”

In the present case the facts which constitute the criminal offense fall only under one statute, Miss.Code Ann. § 97-37-1 (1972), dealing with carrying a concealed weapon. There are not two statutes which apply to the criminal offense in this case. Sections 99-19-81 and 99-19-83 of the Miss.Code Ann. are not criminal offenses and only affect sentencing. Further the indictment in the present case fully complied with the requirements of Rule 6.04 of the Mississippi Uniform Criminal Rules by listing the principal charge and the previous convictions with the required particularity. The indictment also complied with Rule 2.05 of the Mississippi Uniform Criminal Rules concerning the form of the indictment.

We have examined all the assignments of error and find them to be without merit. There being no error, this cause is affirmed.

AFFIRMED.

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


text:
    Ralph COLLINS v. STATE of Mississippi.
    No. 52914.
    Supreme Court of Mississippi.
    Oct. 14, 1981.
    Walls, Buck & Irving, Robert E. Buck, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

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

AFFIRMED.


author: LEE, Justice, for the Court:

text:
    KNIGHTS & DAUGHTERS OF TABOR v. CITY OF MOUND BAYOU, Mississippi.
    No. 52873.
    Supreme Court of Mississippi.
    Oct. 14, 1981.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, Lindsey C. Meador, Cleveland, for appellant.
    Walls, Buck & Irving, Johnnie E. Walls, Jr., Greenville, for appellee.

      Before PATTERSON, C. J., and SUGG and LEE, JJ.
   LEE, Justice, for the Court:

Knights & Daughters of Tabor, an unincorporated association, has appealed from a judgment of the Circuit Court of Bolivar County, Honorable Elzy J. Smith presiding, affirming an order of the County Court approving the action of the Mayor and Board of Aldermen of the City of Mound Bayou declining to change the assessment of certain real property. We affirm.

Did the lower courts err in holding that appellant failed to introduce proof of the true value of its property?

Appellant owns two 12-unit apartment complexes located on the southern three-fourths of Green’s Square in the city of Mound Bayou. In 1977 the property was assessed by appellee at a value of $50,400. On a 20-mills levy, the 1977 taxes amounted to $1008. In 1978 the property was assessed at a value of $151,200 and the 1978 taxes on the same millage rate amounted to $3024.

Pursuant to Mississippi Code Annotated section 21-33-29 (1972), appellee published notice that objections to the assessments on the tax rolls for the year 1978 would be heard October 3, 1978. Appellee did not appear at the time and place provided and register objections to the 1978 assessment. In compliance with Mississippi Code Annotated sections 21-33-31, 21-33-33, 21-33-35 (1972), appellee equalized and finally approved the rolls and assessments for the year 1978. Section 21-33-39 provides the following:

Any taxpayer, or any person owning or having a legal interest in any property, feeling aggrieved at the action of the governing authorities in equalizing and making final assessments, shall have the right of appeal to the circuit court in the manner provided by section 11-51-77, Mississippi Code of 1972, within twenty days after the adjournment of the meeting of the said governing authorities at which the final approval of the assessment roll is entered on the minutes.

Appellant failed to take advantage of the above section and did not appeal from the final assessment of its property. However, on January 2, 1979, appellant filed a petition with the Mayor and Board of Aldermen of Mound Bayou seeking a change and reduction in the real property assessment. At its regular January 2, 1979, meeting, appel-lee denied the petition on. the ground that the assessment was equitable and in line with the assessments of similar properties and that the petition had not been filed prior to the October 1978 deadline for hearing objections to the assessments. In due course, appellant appealed to the Circuit Court of Bolivar County, the matter was heard upon transfer to the County Court, and the action of the Mayor and Board of Aldermen of Mound Bayou was affirmed by those courts.

Mississippi Code Annotated section 27— 35-143 (1972), provides that property assessments in a situation such as is presented here may be changed and decreased for one of fourteen circumstances enumerated in that section.. The section and circumstance applicable here are as follows:

The board of supervisors of each county shall have power, upon application of the party interested, or by the assessor on behalf of such party, or otherwise as prescribed in sections 27-35-145 to 27 — 35— 149, to change, cancel or decrease an assessment in the manner herein provided at any time after the assessment roll containing such assessment has been finally approved by the state tax commission, and prior to September 30 next, being the end of the fiscal year in which the taxes on such assessment are payable, under the following circumstances and no other:
12. When the property has been assessed for more than its actual value; but in such cases the board shall require proof, under oath, of such excessive assessment by two or more competent witnesses who know of their own personal knowledge that the property is assessed for a higher sum than its true value.

Appellant did not introduce proof of the actual value of its property assessed and wholly failed to comply with (12) herein-above set forth.

City of Cleveland v. T. V. Cable Co., Inc., 239 Miss. 184, 121 So.2d 862 (1960), involved the assessment of T.V. Cable Company, Inc. property by the City of Cleveland. As here, no objection was made at the time and place set by the City of Cleveland for hearing objections to the assessment of property. No objection was made and no appeal was taken from the final assessments. The section quoted above was relied upon by the taxpayer. This Court held that the burden is upon the taxpayer to show by two or more competent witnesses (who know of their own personal knowledge) that the property is assessed for a higher sum than its true value. The taxpayer failed to meet that burden and the assessment by the City of Cleveland was upheld. The Court said:

It should be noted that this is not an appeal from an assessment of property done at the regular time and place for assessing ad valorem taxes. Appellee prosecuted no appeal from the assessment made in September 1958. This is an appeal from an order on an application for a change in an assessment that had already become final. Section 9815 authorizes changes in certain situations therein enumerated and under subsection (12) the terms thereof must be complied with before any change may be made. This the appellee failed to do, and until the taxpayer proves the property is assessed at a sum higher than its actual or true value, the assessment may not be changed. (239 Miss. at 191, 121 So.2d at 864)

Appellant failed to comply with Section 27-35-143 (12) and the lower court correctly held that no competent evidence was adduced by appellant that its property was assessed for a higher sum than its true value, and the lower court is affirmed on that question. In view of such decision, we do not reach, or consider, the constitutional question advanced by appellant, and 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:
    ESTATE of Greta Meadow McKELLAR, Deceased, by Alfred E. Corey, Successor Administrator v. Med Scott BROWN.
    No. 52919.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Alfred E. Corey, Meridian, for appellant.
    Betty Long, Meridian, for appellee.
    Before PATTERSON, SUGG and LEE, JJ.
   LEE, Justice, for the Court:

The estate of Greta Meador McKellar has appealed from a judgment of the Chancery Court of Lauderdale County, Honorable Howard R. Pigford presiding, allowing a probated claim in favor of Dr. Med Scott Brown in the sum of $11,000. The estate has assigned three errors in the trial below. We affirm.

Prior to the death of Greta Meador McKellar on March 31, 1979, appellee made and delivered unto Mrs. McKellar her personal check in the sum of $11,000, as a loan. Mrs. McKellar entered into an oral agreement with appellee wherein she agreed-to execute a will in which she would devise certain lake-house property to appellee in repayment of the loan. On August 23, 1977, she made an effort to comply with the agreement and wrote out a holographic will containing the following:

To the kindest and most understanding person I have ever known, Dr. Med Scott Brown, I leave my lake property and house at Dalewood Lake.

After Mrs. McKellar’s death, the instrument was filed for probate but it was later found to be insufficient as a matter of law. An administrator of the estate was appointed, notice to creditors was published and, within the time provided by law, appellee probated her claim for the $11,000. She filed an affidavit setting out the oral contract of Mrs. McKellar to repay the $11,000 loan by executing a will devising the lake property to her.

I.

Did the Chancellor commit error by admitting evidence in support of the appel-lee’s probated claim when that evidence had not been attached as exhibits to the claim?

The administrator contested the claim and denied having any knowledge of the indebtedness, or the agreement between decedent and appellee. The contested claim, and evidence in support thereof, were presented to the chancellor. In the course of the trial, appellee introduced two exhibits, which had not been attached to the claim itself, viz, appellee’s check in the sum of $11,000 payable to Mrs. McKellar and the document purporting to be the unsubscribed holographic will of Mrs. McKellar. Appellant contends that it was error for the court to admit these exhibits in evidence, since they had not been attached to the claim.

Mississippi Code Annotated section 91 — 7— 149 (1972) provides in part as follows:

Any person desiring to probate his claim shall present to the clerk the written evidence thereof, if any, ... or' if there be no written evidence thereof, an itemized account or a statement of the claim in writing, signed by the creditor, and make affidavit, to be attached thereto, ...

The claim of appellee is based upon an oral contract and not upon any written agreement or instrument. In Wilson v. Yandell, 174 Miss. 713, 165 So. 430 (1936), the Court said:

Applying the rule announced in Lehman v. Powe, [95 Miss. 446 , 49 So. 622] supra, that the statute, section 1671, Code 1930, requires that, in presenting claims against the estate of a decedent, the evidence or statement of same probated must on its face show a prima facie right in the claimant to recover from the estate the amount claimed, and that “the words ‘written evidence,’ as used in the statute, clearly mean such a writing as by its terms or on its face evidences the fact that a liability exists on the part of the estate in favor of the claimant,” .... (174 Miss. at 724, 165 So. at 433)

In our opinion, the check and the will do not constitute such written evidence which requires them to be filed along with the claim. Where the requirement of the statute has been met, as here, appellee has the right, on a contest, to introduce evidence in support of her claim. Ellis v. Berry, 145 Miss. 652, 110 So. 211 (1926); Nicholson v. Dent, Robinson & Ward, 189 Miss. 658, 198 So. 552 (1940); Estate of Wilson v. National Bank of Commerce, 364 So.2d 1117 (Miss.1978).

Page on Wills, section 10.47 at page 541 (1960), states: “[T]he fact that a promissor made a will in attempted performance of a contract to make a will is admissible in evidence as tending to prove such contract. This is true although the will is of no effect because it was not properly executed.” There is no merit in this assignment.

II.

Did the chancellor err in failing to sustain the appellant’s affirmative defense based upon the statute of limitations?

Mrs. McKellar died March 31, 1979, and appellee filed her claim for probate on June 14, 1979. Mississippi Code Annotated section 91-7-153 (1972) provides:

The presentation of a claim, and having it probated and registered as required by law, shall stop the running of the general statute of limitations as to such claim, whether the estate be solvent or insolvent.

The statute of limitations begins to run when a cause of action accrues. Mississippi Code Annotated section 15-1 — 29 (Supp. 1980) sets out the following:

Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three (3) years next after the cause of such action accrued, and not after, except that an action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after.

In the present case, the appellee’s cause of action for breach of the oral contract did not arise until the decedent died, the claim was registered within the three-year period and was not barred by the statute of limitations. Ellis v. Berry, 145 Miss. 652, 110 So. 211 (1930); also see Page on Wills, § 10.38 at page 519 (1960).

III.

Did the lower court err in refusing to sustain the appellant’s affirmative defense based upon the statute of frauds?

The rule is well established that a person may contract to devise his property by will, Anding v. Davis, 38 Miss. 574 (1860), and such a contract is not repugnant to public policy. Price v. Craig, 164 Miss. 42, 143 So. 694 (1932). Accord, Monroe v. Holleman, 185 So.2d 443 (Miss.1966). However, appellant contends that the statute of frauds, Mississippi Code Annotated section 15-3 — 1 (1972) bars recovery. The pertinent part of that section follows:

An action shall not be brought whereby to charge a defendant or other party:
(c) upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year;
unless in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in •writing.

In Collin’s Estate v. Dunn, 233 Miss. 636, 103 So.2d 425 (1958), the Court held that an oral agreement between the parties to make a will devising property is unenforceable and said:

It is generally held that an oral agreement to convey land by will or otherwise is within the statute of frauds, and specific performance of such agreement cannot be enforced. Ellis v. Berry, 145 Miss. 652, 110 So. 211. But this Court has recognized the principle that, when parties make an oral agreement that one is to care for and support the other and that the latter will make compensation therefor and such services are rendered, but not paid for by the latter during his lifetime, the party who has rendered the care and provided the support under such an agreement may recover therefor on the quantum meruit. Ellis v. Berry, supra; First National Bank v. Owen, 177 Miss. 339, 171 So. 4; Hickman v. Slough, 187 Miss. 525, 193 So. 443; In re Estate of Whittington, deceased, 217 Miss. 457, 64 So.2d 580.
(233 Miss. at 644-645, 103 So.2d at 430)

An action to enforce an oral agreement to devise the lake-house property here would be unenforceable. However, appel-lee did not seek enforcement of the agreement, but probated the agreement for recovery of the $11,000 indebtedness, which was a consideration for it.

Where an action may not be maintained on an oral contract as being within the statute of frauds, or for damages resulting from a breach of such contract, the general rule is that the party breaking the contract will not be permitted to obtain benefits from it to his unjust enrichment. The statute of frauds may not be used to permit one relying on it to enrich himself at the expense of another or to aid in defrauding such other person. 73 Am.Jur.2d Statute of Frauds § 537 at pages 173-174. The trial court correctly declined to sustain the affirmative defense.

There being no errors in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

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

      . The will was not subscribed by her.


text:
    Walter Lee JOHNSON v. STATE of Mississippi.
    No. 52900.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Bridgforth, Woods & Buntin, Taylor Bun-tin, John G. Zizmann, Southaven, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice, for the Court:

This is an appeal from the Circuit Court of Lafayette County wherein the appellant, Walter Lee Johnson, was convicted of capital murder and sentenced to life in the custody of the State Department of Corrections.

Appellant and a co-defendant were indicted by the Panola County grand jury in September, 1979, for the robbery and murder of Birnie Keating, the proprietor of a small service station in Sardis, Mississippi. The court granted a motion for severance and upon appellant’s motion granted a change of venue from Panola County to Lafayette County.

The evidence showed that on Friday, August 3, 1979, appellant Walter Lee Johnson, borrowed George Thompson’s white Ford automobile in Memphis, Tennessee. Saturday morning appellant visited Larry Henderson in Sardis and talked of “getting some quick money.” The Keating Service Station was mentioned. About 10:00 a. m. that day, Birnie Keating was found standing in the doorway of the store with blood all over him. He died two days later.

Willie Earl Patton, appellant’s co-defendant, testified that he and appellant went to Mr. Keating’s store that morning. While Keating was in the back getting antifreeze, appellant hit Keating with his fist, they began to struggle and Keating fell to the floor. Patton further testified that while he was trying to open the safe, appellant Johnson kicked Keating in the head repeatedly. The Shelby County medical examiner testified Keating’s death was due to multiple blunt trauma to the head.

After the robbery, appellant admitted to several friends that he had robbed a store in Sardis and beaten a man during this robbery. On October 30, 1979, appellant was arrested in Indianapolis, Indiana, by the F.B.I.

This record reveals a needless, inexcusable killing, brutally accomplished in the course of an armed robbery. We find the verdict of the jury was more than justified by the evidence, and, under the circumstances, appellant was fortunate not to have been sentenced to suffer the death penalty.

On appeal appellant asserts only one assignment of error, that discrimination in selection of the foreman of the grand jury existed at the time of appellant’s indictment.

The record showed that according to the 1970 census, the percentage of black persons over 21 years of age in Panola County was 43 percent, while white persons comprised 57 percent of the population. The 1980 census figures from Panola County reveal that white persons comprise approximately 50.8 percent of the total population, while blacks comprise approximately 49 percent (the remaining .2 percent of the population consists of other minorities). It was undisputed that since the implementation of the Jury Selection Act in 1975 there has been adequate minority representation on grand and petit juries in Panola County. However, in the ten terms of court since 1975 no black person has ever been appointed grand jury foreman. It was also proved that since 1959, 42 grand jury foremen had been appointed and that none were black. Appellant does not attack the makeup of or the manner of selecting the grand jury, nor does he contend the grand jury was selected in an unconstitutional or discriminatory manner. He does contend, however, that the indictment is void because black foremen were systematically not appointed, in a discriminatory manner.

There is no testimony in the record to the effect that failure to select a black grand jury foreman was intentionally or purposely done. However, the appellant strongly contends that the failure to appoint a black foreman under the facts above enumerated makes out a prima facie case of discrimination in an unconstitutional manner which was not rebutted by the State.

The State contends that the crucial period for determining discrimination should not begin until 1975 when the new Jury Selection Act went into effect and that this does not constitute such a significant period of time as to enable the Court to determine whether there has been constitutionally prohibited discrimination. With this we agree.

In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), the United States Supreme Court held that while the Tennessee method of selecting the grand jury foreman (according to Tennessee procedure, the position is filled by the trial judge from the general population, and he has broad authority in grand jury matters and serves sometimes for several years) was discriminatory and susceptible to abuse, respondent Mitchell had not established a pri-ma facie case of racial discrimination because the evidence did not show underrep-resentation of Negroes for a significant period of time. The Court observed, however, that “A criminal defendant ‘is entitled to require that the state not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice.’ Alexander v. Louisiana, 405 U.S. [625] 628, 629, 92 S.Ct. 1221 [1224], 31 L.Ed.2d 536 (1972). Accordingly, where sufficient proof of discrimination in violation of the Fourteenth Amendment has been made out and not rebutted, this Court uniformly has required that the conviction be set aside and the indictment returned by the unconstitutionally constituted grand jury be quashed. E. g., Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159 [1162], 86 L.Ed.2d 1559 (1942).” (443 U.S. at 551, 99 S.Ct. at 2998).

In a footnote to the above quoted language, the Court said: “[W]e may assume without deciding that discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire grand jury venire. See Carter v. Jury Commission, 396 U.S. 320, 338, 90 S.Ct. 518 [528], 24 L.Ed.2d 549 (1970).” (443 U.S. at 551-552, 99 S.Ct. at 2998).

A similar case in Mississippi is that of Herring v. State, 374 So.2d 784 (Miss.1979), where appellant contended his indictment was void because black foremen were systematically excluded. In Herring, this Court held that the appellant had failed to make out a prima facie case of discrimination in the selection of the grand jury foreman, but brought to the attention of the bench and bar the holding in Rose v. Mitchell, supra.

Under Mississippi procedure, the grand jury foreman is appointed by the trial judge after the grand jurors are selected in a random procedure as required in Mississippi Code Annotated section 13-5-26 (Supp. 1981). The foreman is administered a statutory oath, and the other grand jurors are administered an oath that they will be bound by the same oath taken by the foreman. Miss. Code Ann. § 13-5-45 (1972). The foreman has the authority to order subpoenas for all witnesses, swear the witnesses, and he keeps a record of the witnesses sworn for the court. Miss. Code Ann. § 13-5-63 (1972). Except for this authority, the foreman has no greater responsibility in the returning of indictments than any other grand juror; and, the grand jury serves for a very limited period of time. As a matter of common practice, any member of the grand jury may request the issuance of subpoenas and may call for any information or investigation authorized by law. Unlike the Tennessee statute, a grand jury foreman in Mississippi has no more discretionary responsibilities or duties than any other member of the grand jury.

In this case a grand jury adequately representing the population of Panola County, which is 49 percent black and 50.8 percent white with .2 percent representing other minorities, indicted the appellant, and a petit jury, also adequately comprised with respect to the races of Lafayette County, convicted appellant of capital murder. Consequently, under these undisputed facts, no theory could be reasonably justified upon which to predicate a holding that this individual defendant has suffered any prejudice.

However, we recognize that the assertion of this proposition by the defendant has a far broader purpose than just protecting the defendant from bias or prejudice because of the makeup of a grand jury. That purpose is to assure all segments of the population the opportunity to participate, without discrimination, in the entire jury selection and decisional process. In this regard, Mississippi has made great strides since the implementation of the Jury Selection Act in 1975 and has reached a point where there are virtually no claims of discrimination with respect to the makeup of juries in this State. We also recognize that qualified persons of the minority races should be appointed grand jury foremen and take judicial notice that they have been appointed as such throughout the State. If there be any counties in which they have not been so appointed, then we urge the circuit judge to give serious consideration to the appointment of qualified members of a minority at the convening of the next grand jury in that county. Failure to do so, in a discriminatory manner, could be adequate cause to quash indictments in the future. We urge the courts to take notice of Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979); Herring v. State, 374 So.2d 784 (Miss.1979) and this opinion and act accordingly.

The record in this case does not show that the attorneys for the appellant were representing him when the grand jury was drawn and the foreman appointed; but, hereafter, when an attorney represents members of a minority race prior to the convening of a grand jury, the attorney has a duty to call to the attention of the trial judge any developing pattern that could possibly be interpreted as discriminatory so that the court will have an opportunity to correct any possible error or oversight. Attorneys may not consciously allow a situation to develop, without objection, sandbagging the court and later claim error on behalf of their client.

This record reveals that the broad purpose of the rule requiring appointment of minorities as grand jury foremen has been served now in Panola County. A black was appointed foreman of the grand jury at the next succeeding term after the appellant was tried and convicted; and, we feel reasonably sure that this will not be a problem in that county in the future.

Therefore, since the appellant was not personally prejudiced in any way by failure to have a black foreman of the grand jury by which he was indicted and since the broader purpose of assuring that blacks be appointed has been accomplished, we are of the opinion that no reversible error has been demonstrated.

The appellant’s conviction and sentence are affirmed.

AFFIRMED.

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

SUGG, J., took no part.

      . We take judicial notice of these census statistics from the 1980 Census of Population and Housing advance reports for Mississippi.