text:
    NEW HOTEL MONTELEONE, INC. v. FIRST NATIONAL BANK OF COMMERCE, INC.
    No. 13017.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 2, 1982.
    Rehearing Denied Jan. 14, 1983.

      Frank C. Dudenhefer, Arthur L. Ballin, New Orleans, for plaintiff-appellant.
    James P. Farwell, L. Havard Scott, III, New Orleans, for defendant-appellee.
    Before WARD, WILLIAMS and BYRNES, JJ.
   WARD, Judge.

The New Hotel Monteleone, Inc. brought suit in Orleans Parish Civil District Court asking for rescission or reformation of a contract entered into with the First National Bank of Commerce. The Trial Judge rendered judgment for the Bank denying either rescission or reformation, and Mon-teleone has appealed.

We affirm the judgment of the Trial Court for the reasons set forth below.

The contract, entitled “Air Conditioning and Water Contract,” was one of several agreements entered into in 1963 between the Monteleone and the Bank. In the first contract, the Monteleone leased to the First National Bank of Commerce a piece of unimproved property in the city of New Orleans adjacent to the Hotel. The Bank was to construct a building for a branch office on the leased grounds. After signing the lease for the land, Monteleone and the Bank executed another contract entitled “Air Conditioning and Water Contract” which provided that Monteleone would supply hot and cold water and heating and cooling agents to the Bank and that “the Bank shall pay the Hotel Two Hundred ($200.00) Dollars per month for said services.” The contract also provided that it would be effective for the duration of the ground lease, which was renewed in 1978, and terminates in 1993.

In 1963, when the contract was signed, two hundred ($200.00) dollars approximated Monteleone’s monthly cost for providing the hot and cold water and heating and cooling agents to the building. After 1963, the cost of providing utilities to the Bank substantially increased, and in 1976, when the cost far exceeded Two Hundred ($200.00) Dollars, Monteleone requested the Bank to pay the actual cost incurred by Monteleone. The Bank refused, relying on the terms of the 1963 utility agreement, and in 1978, Monteleone filed this suit. The Bank filed an exception to the action, asserting that Monteleone’s claims had prescribed. The Trial Judge declined to rule on the Bank’s exception, but after trial on the merits, he rendered judgment in favor of the Bank and against Monteleone.

On appeal, Monteleone designates several assignments of error, primarily contending that the Trial Judge erred when he held that the contract is a valid, accurate and complete representation of the intent of the parties. In other words, Monteleone contends that the Trial Judge should have nullified or rescinded the contract which it argues is invalid first, because it was entered into without cause or consideration; secondly, because there was error in the principal cause; and, lastly, because it contains a potestative condition which makes the obligation depend solely on the exercise of the Bank’s will.

Alternatively, Monteleone contends, in the event the contract is not nullified or rescinded, that the Trial Judge should have reformed the contract because there was mutual error between the parties. More particularly it argues that there is error in the contract and that it should be reformed because it does not express the true intentions of the parties that the Bank pay the actual cost of supplying the utilities. Finally, it argues that if the contract is not either nullified and rescinded, or reformed, it should be terminated at once because it results in an unjust enrichment of the Bank at the Hotel’s expense.

The Bank maintains that the Trial Judge did not err in his determination of the merits and, further, reurges the argument that Monteleone’s suit for either rescission or reformation had prescribed. We pretermit Monteleone’s assignments of error because we believe that its suit for rescission or reformation of the 1963 “Air Conditioning and Water Contract” was barred by prescription.

The prescriptive period for rescission of contracts is determined by La.C.C. Art. 2221 which states in pertinent part:

In all cases in which the action of nullity or of rescission of an agreement is not limited to a shorter period by a particular law, that action may be brought within ten (10) years.
* * * * * *

Monteleone’s first argument for nullification or rescission is based on its belief that there was an absence of cause or consideration, and it contends that the contract can have no effect, relying on La.C.C. Art. 1893 which provides that “[a]n obligation without a cause, or with a false or unlawful cause, can have no effect.” According to La.C.C. Art. 1898, where adequate cause or consideration exists at the time the contract is made, but afterwards fails, its failure will not affect the contract.' If there was an absence of cause when the contract was entered into in 1963, the action to rescind on this basis would have prescribed ten years later in 1973. La.C.C. Art. 2221. Monteleone’s lawsuit to rescind the contract on this basis was not filed until 1978. We therefore believe Monteleone’s action to rescind for lack of cause or consideration was barred by prescription.

Monteleone’s next argument is that because there was error in the principal motive, the contract should be rescinded or declared null for lack of consent. They assert that their only motivation was to provide the utilities for actual cost and without profit and that they intended to consent to cost reimbursement, believing in error that the fixed price contract expressed their intent.

The law is clear. An action to rescind a contract because of alleged error is likewise governed by La.C.C. Art. 2221:

In all cases in which the action of nullity or of rescission of an agreement is not limited to a shorter period by a particular law, that action may be brought within ten (10) years.
That time commences in case of violence only from the day on which the violence has ceased; in case of error or deception, from the day on which either was discovered.

Nevertheless, Monteleone’s tabulation of yearly costs for providing utilities to the Bank shows that the cost rose above two hundred ($200.00) dollars as early as 1964, and then continued to rise each year thereafter. By 1967, the cost had risen nearly twenty-five (25%) percent. Therefore, it should have been apparent to Mon-teleone during the years immediately following the execution of the contract, if not discernible from the face of the contract, that the fixed price contract did not provide for reimbursement of actual, cost. Since Monteleone’s suit to rescind the contract for error was filed more than ten years after the facts supporting its allegation of error had become readily apparent, we believe the suit was barred by prescription.

Monteleone additionally claims that the contract should be rescinded because it contains a potestative condition which makes the contract depend solely on the exercise of the Bank’s will. The existence of a potestative condition would have been apparent on the face of the contract so that the ten year prescriptive period of C.C. Art. 2221 began to run when the parties entered into the contract in 1963. We believe that Monteleone’s suit for rescission because of a potestative condition was likewise barred.

As an alternative to rescission, Monteleone asks that the contract be reformed to express the true intent of both parties, alleging mutual error in the formation of the contract. Reformation is an equitable remedy to correct errors in written documents, and an action for reformation is subject to the ten year prescriptive period set forth in La.C.C. Art. 3544. Similar to the prescriptive period of La.C.C. Art. 2221, the prescriptive period of Article 3544 begins to run when the error is discovered. Vallee v. Vallee, 180 So.2d 570 (La.App. 3d Cir.1965); Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957). In its argument for rescission, Monteleone contended that there was a unilateral error as to cause. In its alternative argument for reformation, it contends that there was mutual error, alleging that both parties intended to contract for the reimbursement of the actual cost to the Hotel. For the same reasons we have previously discussed, we believe that Mon-teleone’s suit was barred by prescription because Monteleone was aware in the years immediately following the execution of the contract that the terms of the contract did not reflect the intentions of both of the parties. Although Monteleone may not have realized the serious consequences of its mistake until later years when prices continued to soar, the law requires that the action for rescission or reformation be brought within ten years of the discovery of the error, rather than the discovery of the consequences of the error. Monteleone’s suit for reformation was not brought until more than ten years after discovery of the alleged error, and therefore, was barred.

Finally, Monteleone contends that the contract results in unjust enrichment to the Bank and impoverishment to itself. Monteleone’s claim of unjust enrichment is also governed by the ten year prescriptive period of La.C.C. Art. 3544. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1968) (Per Summers, J. with two justices concurring and two justices concurring in result.); Department of Highways v. City of Pineville, 403 So.2d 49 (La.1981). As with the allegations of error, Montel-eone should have been aware of the facts supporting its claim of unjust enrichment in the years immediately after the contract was entered, and thus its petition asking for immediate termination of the contract is also barred.

Moreover, even if we were to hold that the action had not prescribed, Monteleone would not prevail on this basis. There are five prerequisites that must be satisfied to successfully invoke an action for unjust enrichment: (1) there must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and the impoverishment; (4) there must be an absence of justification or cause for the enrichment and impoverishment; and (5) there must be no other remedy at law. Minyard v. Curtis Products, Inc., supra. Although there may be an enrichment of the Bank and a connected impoverishment of the Hotel, Mon-teleone does not have a cause of action for unjust enrichment because the enrichment results from a contract which has the effect of law on the parties, and, therefore, the enrichment is not without legal cause or justification. See, La.C.C. Art. 21; La.C.C. Art. 1901; Minyard v. Curtis Products, Inc., supra; Edmonston v. A-2nd Mortgage Co. of Slidell, Inc., 289 So.2d 116 (La.1974).

Accordingly, for the reasons set out above, the judgment of the Trial Court is affirmed.

      . Before amendment by Act # 308, Sec. 1 of 1980, La.C.C. Art. 3542 provided: “The following actions are proscribed by five years: That for nullity or rescission of contracts, testaments or other acts.” The apparent conflict between the former Article 3542 and Article 2221 has baffled jurists and resulted in confused jurisprudence in which one article or the other has been applied through strained analysis or without comment or explanation. See generally, Comment, The Five and Ten Year Prescriptive Periods for the Action of Nullity or Rescission of Agreements, Contracts and Other Acts. 21 Tul.L.Rev. 438 (1947) and Marshall v. Wells, 381 So.2d 551 (La.App. 2d Cir.1980) (and cases cited therein at page 553). Article 3542, as amended in 1980, abates the confusion by deleting the word “contracts” to provide: “The following actions are prescribed by five years: That for the nullity or rescission of testaments or other acts. That for the reduction of excessive donations. That for the rescission of partitions and guarantee of the portion. This prescription only commences against minors after their majority.”
      Plaintiffs action may be held to have prescribed under either the former Art. 3542 or Art. 2221. Our discussion is limited to the provisions of Art. 2221, giving Plaintiff the benefit of any doubt as to the applicability of the shorter prescriptive period of the former Art. 3542.


source: Caselaw Access Project

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

license: Public Domain

text:
    Nathan Leon ASHLEY v. STATE of Mississippi.
    No. 53266.
    Supreme Court of Mississippi.
    Nov. 3, 1982.
    Rehearing Denied Jan. 12, 1983.

      Johnston & Steinberger, Albert S. Johnston, III, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P.J., and HAWKINS and DAN M. LEE, JJ.
   SUGG, Presiding Justice, for the Court:

Shawn M. Allman was killed on July 3, 1980 when the automobile in which he was a passenger was stopped at a traffic signal and was hit in the rear by an automobile driven by appellant. The automobile in which the deceased was riding caught fire and he died in the ensuing blaze. Appellant was convicted of manslaughter by culpable negligence and sentenced to serve a term of ten years. Appellant has assigned several errors but does not contend that the verdict of the jury was against the overwhelming weight of the evidence.

I

Appellant first argues that the trial court erred in failing to sustain his pretrial motion to suppress the results of a blood-alcohol test. The trial court conducted hearings on the motion to suppress. Patrolman Albert Santacruz testified that he arrived at the scene of the collision shortly after it occurred. The automobile in which Allman was riding was burning, the fire department arrived and the fire was extinguished about forty-five minutes later, and the body of Allman was recovered from the vehicle. In the meantime, Santacruz determined that four vehicles were involved in the collision and four people, including appellant, were sent by ambulance to the hospital.

Based on information he received from other officers who preceded him to the scene, about appellant’s involvement in the collision and appellant’s behavior, Santacruz radioed the sheriff’s department and requested it to contact the hospital where appellant had been carried and instruct the hospital personnel to hold appellant and perform a blood-alcohol test on him. This request was made through the sheriff’s office because Santacruz did not have access to a telephone at the scene of the collision and he had no radio contact with the hospital. The request was relayed to the hospital by the sheriff’s department. If appellant had not been injured and sent to the hospital, he could have been arrested at the scene for the felony of manslaughter by culpable negligence.

Officer Santacruz arrived at the scene of the collision about 9:10 p.m. and approximately two hours and twenty minutes later, after completing his investigation, he went to the Singing River Hospital. When he arrived at the hospital the nightwatchman told him they were having trouble with a patient. He found the patient in the restroom, talked to him and persuaded the patient to get into a wheel chair to be transported to one of the emergency rooms. After the patient was placed in a wheel chair, Santacruz learned that the patient was the appellant. He testified that appellant was belligerent and was drunk. He then ascertained that a blood test had been previously run on the appellant, but did not know it was requested by appellant’s physician.

On the second hearing on the motion to suppress, appellant called Dr. Edward Wiggins, an orthopedic surgeon, as his witness. Dr. Wiggins testified that he treated appellant at the hospital and ordered blood drawn from appellant for a blood-alcohol test. The doctor had not received instructions from any law enforcement official to perform a blood test, but ordered the blood test as appellant’s physician for diagnostic purposes.

On cross-examination the doctor testified that appellant exhibited a very belligerent behavior, appellant was combative, and had a strong odor of alcohol on his breath. He stated that, since appellant had been in an automobile accident with the possibility of a head injury he ordered the blood-alcohol test to ascertain whether appellant’s behavior was due to alcohol or injuries received in the accident. He testified that appellant had a .31% alcoholic content in his blood.

He testified that, after his initial examination, appellant demanded that he be taken to the bathroom and the doctor felt that it was the better part of valor to grant appellant his request. Appellant threatened to leave the hospital so the doctor explained to a highway patrolman that appellant was apparently intoxicated, he had been in an automobile wreck and had a bad ankle fracture that needed surgery. He asked the officer to help him convince appellant to stay in the hospital. The officer “offered to take him to jail if he left the hospital,” whereupon appellant changed his mind and consented to enter the hospital. The doctor stated that in his opinion the appellant was highly intoxicated. No objection was made to the cross-examination of the doctor which revealed the above facts.

At the first hearing on the motion to suppress the lab technician who drew the blood from appellant and the technician who administered the test testified in detail about drawing the blood at 10:55 p.m. and the results of the test.

The blood test was administered at the direction of Dr. Wiggins and not pursuant to the request of Patrolman Santacruz. Appellant had not been arrested when his blood was withdrawn for the test.

Appellant’s motion to suppress was based on Fourth Amendment and privileged communication grounds.

We first address appellant’s Fourth Amendment claims. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) held that taking blood samples from a defendant who had been lawfully arrested did not violate his Fourth Amendment rights. In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) the Court held that taking fingernail scrapings from one detained did not violate his Fourth Amendment rights where probable cause for his arrest existed. The Cupp rationale has been extended in some jurisdictions to include the warrantless taking of a suspect’s blood for analysis prior to arrest where probable cause existed and the circumstances dictated that the blood should be taken for a test. Aliff v. State, 627 S.W.2d 166 (Tex.Cr.App.1982); State v. Campbell, 615 P.2d 190 (Mont.1980); State v. Oevering, 268 N.W.2d 68 (Minn.1978).

We find appellant had not been lawfully arrested when his blood was withdrawn for testing. However, our examination of the facts must not stop here. We must determine whether Officer Santacruz had probable cause to detain appellant and order a blood test after he went to the hospital. The facts in possession of the officer at that time were that Ashley was driving an automobile which had run into the rear end of another automobile which was stopped at a traffic signal, that an occupant of the stopped automobile had been killed in the accident, and in the opinion of the officer appellant was intoxicated. Under these facts the officer could then have arrested appellant on a charge of manslaughter and required appellant to submit to a test to determine the alcoholic content of his blood. At that time there existed probable cause for arrest and also probable cause to search appellant by requiring him to submit to the withdrawal of blood from his body to be tested.

The officer did not order another blood test because he had been advised that blood had been withdrawn from appellant and the test results were known to the officer.

The United States Supreme Court recognized in Schmerber, supra, that extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. It also recognized, as this Court did in Jackson v. State, 310 So.2d 898 (Miss. 1975), that the percentage of alcohol in the blood begins to diminish shortly after drinking stops as the body functions to eliminate alcohol from the system.

Information gathered at the accident scene and later at the hospital not only provided probable cause for appellant’s arrest, but also indicated that appellant was probably intoxicated; hence, the need for a blood test. Under the facts of this case, we hold that appellant’s Fourth Amendment rights were not violated, and the result of the blood test administered at the direction of Dr. Wiggins was admissible in evidence. We hold that, where the state is justified in requiring a blood test to determine the alcoholic content in a suspect’s blood, and such test has in fact been performed, although for diagnostic and not law enforcement purposes, the state is entitled to the benefit of the test results. It would have been unduly repetitive to require the officer to have blood withdrawn from appellant a second time for testing. This would have required appellant to be subjected to another intrusion of his body. Any additional tests were unnecessary because one had already been performed, and the results were available.

Appellant also argues that his motion to suppress should have been sustained because admission of the result of the test violated the privileged communication statute. Section 13-1-21 Mississippi Code Annotated (Supp.1981). The privilege applies in criminal proceedings. Keeton v. State, 175 Miss. 631, 167 So. 68 (1936). However, the privilege may be waived. We hold that appellant waived the privilege when he called Dr. Wiggins to the stand as his own witness and the result of the test was elicited from the doctor on cross-examination without objection from the defendant.

II

Appellant also argues that the trial court erred in failing to sustain his objection to the testimony of Dr. Wiggins. When the cause came on for trial immediately following the second hearing on the motion to suppress, the state introduced Dr. Wiggins to prove the result of the blood test administered to appellant. The state did not call the lab technicians who withdrew the blood and performed an analysis of the blood, but chose to use Dr. Wiggins to show the result of the test.

Appellant argues that Dr. Wiggins’ testimony was privileged and should not have been admitted over his objection. He relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) where the Supreme Court held that a prosecutor may not use testimony given by a defendant at a pretrial hearing on a motion to suppress evidence. In Simmons the issue was whether a defendant would be required to give up his Fifth Amendment right against self incrimination in order to assert his Fourth Amendment rights to be free from unreasonable searches and seizures. The Supreme Court held that one constitutional right should not have to be surrendered in order to assert another.

In this case there is no tradeoff of constitutional rights. The question is simply whether appellant waived the privileged communication of Dr. Wiggins. When he called Dr. Wiggins as a witness on his motion to suppress and did not object to the cross-examination of the doctor in open court, he waived the privilege. Dr. Wiggins’ testimony at the trial in chief was substantially the same as his testimony on cross-examination on the motion to suppress. We hold that appellant waived the privilege and the court did not err in permitting Dr. Wiggins to testify.

Ill

The appellant also seeks the reversal of this case because of the judge’s failure to admonish the assistant district attorney for a statement made in the jury’s presence. The plea for admonishment arose from the following incident at trial:

BY MR. JOHNSTON: Lady and gentlemen of the jury, let me just say a couple of things here with regard to the testimony of the witnesses for the State, on behalf of the State. I notice that Mrs. Stafford, as closely as she observed things, thought there was a truck down in the road in front of her, when in fact it was a Corvette. A Corvette is a very little car. She testified that it was a truck stopped in that lane. I don’t really know how much this lady really saw. And, then we come to Dr. Wiggins’ testimony. Dr. Wiggins testified that the blood test showed .3, is what he said. And, you remember on cross examination, I asked him if he knew whether or not alcohol was used to swab down the arm, and he said he didn’t. I submit to you that if it was used, then it would jump that test up to .2 or .3 within seconds. BY MR. GUIROLA: Judge, I’m going to object to that, because that’s an out and out lie, and Mr. Johnston knows it.
BY MR. JOHNSTON: That is not so.
BY MR. STEINBERGER: It certainly isn’t.
BY THE COURT: Excuse the jury just a minute.

Initially we note, as conceded by the appellant in his brief, the statement on the possible effect of the use of alcohol swabs on the results of the blood tests was improper. There was no evidence before the jury to justify the statement of appellant’s counsel. The conclusion of appellant’s counsel about the effect of using an alcohol swab when withdrawing blood for a blood-alcohol test was injected into the record by appellant’s counsel at the hearing on the motion to suppress. The conclusion of counsel about the effect of using an alcohol swab was not supported by evidence; in fact, the only evidence was that a zephrain swab was used. Zephrain swabs do not contain alcohol.

Nevertheless, we are convinced that the assistant district attorney’s retort was uncalled for and was improper. Counsel should never use actionable words in referring to opposing counsel because such remarks inject an issue which is not relevant on the question of guilt or innocence. The following language illustrates the district attorney’s duty in prosecuting.

Of course, the district attorney, as an officer of the court, and as a representative of the state, should never permit his zeal in the prosecution of criminal case to cause him to forget that he must exercise the utmost self-restraint and conduct himself with propriety, fairness and dignity. [Dozier v. State, 257 So.2d 857, 860 (Miss.1972) ]

Also, in Edmond v. State, 312 So.2d 702, 705 (Miss.1975), we stated:

[Tjrial courts are allowed considerable discretion to determine whether or not the conduct of an attorney during a trial is so prejudicial that an objection should be sustained or a new trial granted. [Citing Robertson v. State, 257 So.2d 505 (Miss.1972)]

Furthermore, in Bass v. State, 54 So.2d 259 (Miss.1961) we held that an improper statement by the prosecutor does not require reversal unless it is prejudicial.

The remark that appellant’s counsel was guilty of trickery to build up a record in the case was of course improper, but an improper statement is not sufficient to justify a reversal unless it was prejudicial. “A reversal is only warranted for such error as is harmful and which might influence the jury wrongfully in reaching a conclusion of guilt.” Cody v. State, 167 Miss. 150, 163, 148 So. 627, 631. See also Flowers v. State, 101 Miss. 108, 57 So. 226; Calicoat v. State, 131 Miss. 169, 95 So. 318; Wexler v. State, 167 Miss. 464, 142 So. 501; Comings v. State, 163 Miss. 442, 142 So. 19; McLemore v. State, 178 Miss. 525, 172 So. 139; Porter v. State, 193 Miss. 774, 10 So.2d 377; Ivey v. State, 206 Miss. 734, 40 So.2d 609. (54 So.2d at 262)

Furthermore, under Mississippi Supreme Court Rule 11 this Court will not reverse a case where an error occurs unless, on a review of the whole record, it affirmatively appears “that such judgment has resulted in a miscarriage of justice.” It is our opinion that it was error for the judge not to admonish the assistant district attorney. He should have summarily punished him for contempt for using actionable words. The failure of the court to admonish was error, but was harmless error, beyond a reasonable doubt. The proof of appellant’s guilt was overwhelming and the error did not result in a miscarriage of justice. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

IV

The appellant also complains that the trial judge’s admission into evidence a color photograph depicting the remains of one of the victims was an abuse of discretion. There is no merit in this assignment for the photograph was probative of the cause of death and the location of the victim. In this state a trial judge is granted broad discretion in admitting photographs. Briggins v. State, 416 So.2d 691 (Miss.1982). Moreover, as long as photographs “supplement or add clarity to the testimony” no abuse of discretion is found. Hughes v. State, 401 So.2d 1100, 1106 (Miss.1981).

V

Finally, the appellant asserts reversible error was committed when the trial judge admitted into evidence a diagram of the accident scene sketched by the investigating officer. He argues that it improperly revealed the officer’s hypothesis of how the accident occurred in violation of the rule in this state that it is in the province of the jury to determine the cause of an accident. Cowan v. State, 399 So.2d 1346 (Miss.1981); Gandy v. State, 355 So.2d 1096 (Miss.1978). However, the diagram in his case was admitted, after proper predicate was made, during the testimony of an eyewitness to the accident, not the investigating officer. The diagram corroborated this testimony and in no way invaded the province of the jury.

On appeal, for the first time, appellant calls attention to three markings on the exhibit and argues they made the exhibit inadmissible. The markings are the initials “P.O.I.” in two places and “K-29.” He surmises that the jury probably assumed the initials “P.O.I.” mean point of impact, but does not suggest what “K-29” means. He did not object on this ground at trial and will not be heard on this objection for the first time on appeal. In Boring v. State, 253 So.2d 251 (Miss.1971) we held:

Objections to evidence must bring to the attention of the trial judge the specific ground on which it is contended such evidence is inadmissible so that the trial judge may determine whether or not such evidence is available to objector’s adversary.
The rule requiring specific objections is necessary because to permit litigants to hold back objections until on appeal would mean that costly new trials would be had where valid objections could have been sustained during the trial. Roberds v. State, 187 So. 755 (Miss.1939); Kimbrall v. State, 178 Miss. 701, 174 So. 47 (1937); Dobbs v. State, 167 Miss. 609, 142 So. 500 (1932); Williams v. State, 171 Miss. 324, 157 So. 717 (1934). (253 So.2d at 253)

In any event, if the jury assumed “P.O.I.” meant point of impact, this was in accord with the testimony of eyewitnesses.

In light of all the foregoing, this case should be and is affirmed.

AFFIRMED.

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

ON PETITION FOR REHEARING

DAN M. LEE, Justice,

dissenting:

Appellant, Nathan Leon Ashley, was indicted, tried and convicted of manslaughter by culpable negligence by the Circuit Court of Jackson County. Upon conviction, he was sentenced to serve a term of ten years in the Mississippi Department of Corrections. His conviction and sentence were subsequently affirmed by this Court on November 13, 1982, in a written opinion.

Appellant, on appeal to this Court, and now on petition for rehearing, challenged the right of the state to call Dr. Christopher Edward Wiggins, appellant’s physician, as a witness against him on medical privilege grounds.

The record discloses that on February 3, 1981, appellant filed a written motion to suppress the results of a blood alcohol test which was ordered by Dr. Wiggins at the emergency room of the Singing River Hospital following the automobile collision from which the present indictment was returned against him.

On February 23,1981, a hearing was had on appellant’s motion to suppress and motion in limine at which time the trial court overruled the motion to suppress, holding that appellant was under arrest at the time his blood sample was taken. On March 6, 1981, appellant renewed his motion to suppress the blood alcohol test. The court thereafter allowed appellant to offer additional proof in support of his motion. In support thereof, appellant called Dr. Wiggins as a witness. Dr. Wiggins testified only that he performed the blood alcohol test for his own diagnostic information upon appellant’s admission to the hospital for treatment of a severely fractured left ankle and possible head injuries which resulted from the automobile collision. The state then cross-examined Dr. Wiggins, without objection, concerning the results of the blood test and appellant’s condition. The trial court, at the conclusion of the hearing, overruled appellant’s motion, standing by its original ruling.

The case proceeded to trial, whereupon the state called Dr. Wiggins as a witness during its case in chief. When Dr. Wiggins was questioned as to appellant’s condition, the following objection was interposed and ruling made thereon:

BY MR. STEINBERGER: If it please the Court, we would move that that answer be stricken and object to this doctor’s testimony upon the grounds of privilege at this time, and ask that the doctor be restricted in his testimony other than what he actually saw, other than in the treatment of this patient.
BY MR. GUIROLA: Your Honor, first of all, the witness observed these things in the presence of others, therefore, it cannot be privileged. Second of all, he testified earlier in the motion to suppress as to all these facts and therefore there can be no privilege. He testified in a courtroom full of people as to what he observed. The privilege has been waived and is waived forever. '
BY THE COURT: I’m going to overrule the objection and allow him to testify. I think the privilege has been waived.

On appeal, this Court, in affirming appellant’s conviction and sentence, held appellant waived the privilege when he called Dr. Wiggins to the stand as his own witness and the result of the test was elicited from the doctor on cross-examination without objection during the motion to suppress.

Mississippi Code Annotated section 13-1-21 (Supp.198'1) provides:

All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding except at the instance of the patient or in case of the death of the patient at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will. However, waiver of the medical privilege of cancer patients in regard to information necessary under section 41-3-25, Mississippi Code of 1972, for the tumor registry agency shall be implied, and nothing in this section shall be construed to prohibit cooperation with the state board of health as the official tumor registry agency.
In any action commenced after July 1, 1976, against a physician, or after July 1, 1979, against a hospital or hospital employee, for professional services rendered or which should have been rendered the filing of such an action shall constitute an implied waiver of the medical privilege and any medical information relevant to the allegation upon which the cause of action is based may be disclosed in any such proceedings, (emphasis ours)

The privilege has clearly been held to apply in criminal proceedings. Keeton v. State, 175 Miss. 631, 167 So. 68 (1936).

A waiver of the privilege may be effected only at the instance of the patient or, if the patient is deceased, by either his personal representative, his legal heirs, or the proponents and contestants of his will. § 13-1-21, supra.

In Tarrants v. State, 236 So.2d 360 (Miss.1970), this Court held a waiver of the privilege occurred when a criminal defendant placed his doctor on the witness stand. Tarrants is distinguishable from the present case in at least two respects. First, defendant’s counsel in Tarrants questioned the doctor about privileged communications. Secondly, the doctor was called by the defendant’s counsel during the course of the trial. In the case sub judiee, appellant’s counsel only called Dr. Wiggins during appellant’s hearing on the motion to suppress prior to the trial and out of the presence of the jury. Appellant did not go into any communications made to the doctor which were privileged.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court held that when a defendant testifies in support of a motion to suppress evidence on fourth amendment grounds, his testimony may not thereafter be admitted against him at trial on the admission of guilt unless he makes no objection. Because Simmons involved a trade-off between fourth and fifth amendment rights, the state contends it has no application to the case at bar because the medical privilege is merely a creature of statute. However, if appellant by calling his doctor as a witness in support of his motion to suppress waives his medical privilege for all purposes, then such would definitely have a chilling effect upon a criminal defendant’s decision to make a fourth amendment challenge. As to appellant’s failure to object to the doctor’s testimony on cross-examination, the pretrial hearing was merely an evidentiary hearing for the purpose of determining the admissibility of the blood alcohol test. There was no jury present. As soon as the doctor was called by the state and asked to divulge privileged communications, a timely objection was entered.

Conceding that under the rationale of Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), there was probable cause to arrest appellant and probable cause to search him by requiring him to submit to the withdrawal of blood from his body to be tested, the state could have proven the results of the blood test without the necessity of a second test being made. However, such proof should have been suppressed from Dr. Wiggins due to the medical privilege. The effect is that Dr. Wiggins was forced to testify against his patient without the patient’s consent, in clear violation of the privileged communication statute.

Even though the medical privilege is statutory, the use of the blood test results clearly incriminated appellant in the sense that he was forced to trade off his fifth amendment rights to make a fourth amendment challenge to the admissibility of the test. Dr. Wiggins’ testimony should have been suppressed because of medical privilege. By exercising his fourth amendment rights, the appellant was forced to divulge privileged communications through his doctor’s testimony which otherwise would have been suppressed. Appellant, therefore, was forced in effect to choose which constitutional right he would rely upon.

To hold here that appellant waived the privilege by merely calling Dr. Wiggins to the stand will obliterate the privilege insofar as blood alcohol tests are sought to be suppressed. The physician’s testimony was essential at the suppression hearing in this case. If a defendant is deemed to have waived his medical privilege by merely calling the doctor on a hearing on a motion to suppress, his right to invoke the privileged communication statute will be seriously impeded if not obliterated.

In my opinion, the trial court erred in holding that appellant waived his medical privilege by calling Dr. Wiggins as a witness in support of his motion to suppress. I would therefore sustain the petition for rehearing and reverse and remand the cause for a new trial.

PATTERSON, C.J., joins this dissent.

      . Section 63-11-39 Mississippi Code Annotated (1972) provided that if a person’s blood contained .15% or more by weight of alcohol, such person will be presumed to be intoxicated. This section was amended by section 10 chapter 491 Mississippi General Laws of 1981, effective July 1, 1981.

      . All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding except at the instance of the patient or in case of the death of the patient at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will. However, waiver of the medical privilege of cancer patients in regard to information necessary under section 41-3-25, Mississippi Code of 1972, for the tumor registry agency shall be implied, and nothing in this section shall be construed to prohibit cooperation with the state board of health as the official tumor registry agency.
      In any action commenced after July 1, 1976, against a physician, or after July 1, 1979, against a hospital or hospital employee, for professional services rendered or which should have been rendered the filing of such an action shall constitute an implied waiver of the medical privilege and any medical information relevant to the allegation upon which the cause of action is based may be disclosed in any such proceedings.


author: SUGG, Presiding Justice, for the Court:

text:
    A.C. LAMBERT, Sr., Chairman of the Mississippi State Tax Commission v. Alton J. OGDEN, Sr., and Alton J. Ogden, Jr., A Partnership d/b/a Ogden Oil Company.
    No. 53538.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
    Rehearing Denied Jan. 12, 1983.

      James H. Haddock, Joe D. Gallaspy, Bobby R. Long, Gary W. Stringer, Jackson, for appellant.
    Mulhearn & Mulhearn, John E. Mulhearn, Jr., Natchez, for appellee.
    Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   SUGG, Presiding Justice, for the Court:

Appellee sued appellant as authorized by section 27-67 — 25 Mississippi Code Annotated (1972) for a refund of use taxes paid by them claiming that the assessment of use tax made by the Tax Commission was incorrect.

Appellees purchased three vehicles called workover rigs and paid use tax at the rate of three percent (3%) of their cost. Auditors for the Mississippi State Tax Commission conducted an audit of the use tax paid by appellees on the workover rigs and made an additional assessment of use tax. The auditors determined that a portion of the workover rigs should be classified as trucks and taxed at three percent (3%) of cost, but the attached equipment mounted on the trucks should be taxed as other personal property at five percent (5%) of cost. Ap-pellees appealed to the Board of Review which upheld the auditors’ assessment. Ap-pellees then appealed to the Mississippi State Tax Commission which entered an amended order reversing the Review Board. The amended order of the Tax Commission stated:

Portable work-over rigs are not ‘trucks’ within the contemplation of section 27-65-17, Mississippi Code of 1972, so as to be taxed at three percent (3%) on the cost of the truck and five percent (5%) on the attached equipment, but are integral units of equipment taxed at five percent (5%) of cost or value.

Appellees paid the additional tax required by the Tax Commission and filed suit in the Chancery Court of Adams County to recover the tax they claimed was incorrectly assessed. The Chancery Court reversed the order of the Tax Commission holding that the workover rigs were trucks within the contemplation of the sales tax statute and ordered a refund of the excess use tax paid by appellees.

Section 27-65-17 Mississippi Code Annotated (1972) provides for a sales tax on all personal property sold in Mississippi at the rate of five percent (5%) of the sales price. Certain exceptions are set forth in the statute and appellees contend that the work-over rigs were trucks and thus taxable at three percent (3%) of the cost in accord with the third paragraph of section 27-65-17 which states:

Retail sales of aircraft, automobiles, trucks and truck-tractors shall be taxed at the rate of three percent (3%).

The question facing this Court on appeal is, what is a truck?

The sales tax statute does not define a truck and we have searched other statutes for a definition of a truck, but find none. Section 63-3-103(a), (b) Mississippi Code Annotated (Supp.1982) defines a vehicle and a motor vehicle but does not define a truck.

Where a popular word is used in a statute with no statutory definition, we follow the well established rule that popular words in a statute must be accepted in their popular sense, and the Court must attempt to glean from the statute the legislative intent. Mississippi Power Co., et al v. Jones, 369 So.2d 1381 (Miss.1979); Texas Co. v. Wheeless, 185 Miss. 799, 187 So. 880 (1939); State v. J.J. Newman Lumber Co., 103 Miss. 263, 60 So. 215 (1912).

Webster’s Third New International Dictionary defines a truck as “An automotive vehicle built for the transportation of goods on its own chasis.” In Pollard v. Stansell, 169 Miss. 136, 152 So. 646 (1934) the Court had for its consideration whether a motor vehicle was a truck within the meaning of section 5569 Mississippi Code of 1930. In holding that the vehicle was a truck the Court stated:

The appellant contends that he was driving a Ford “pick up,” and witnesses for the appellant describe the vehicle as a Ford “pick up.” The truck was described as a motion vehicle with a seat in front for the driver, and extending from the seat to the rear there is a bed or body such as is generally found on small trucks for the carrying of light freight. It is not built upon a regular Ford truck chassis, but upon the same chassis as the car known as a Ford coupe. The evidence shows that the capacity of this particular vehicle was a half ton or one thousand pounds.
The appellant cites chapter 138, section 5627-1, subsec. 4, Supplementary Code of 1933, as follows: “The word ‘truck’ shall mean any motor vehicle designed and used principally for the transportation of any property and engaged in the business of transporting property.” (169 Miss, at 139, 152 So. at 646).

The statutes referred to in Pollard have been repealed so no statutory definition of a truck remains in the statutory law of this state. However, the statutory definition of a truck under consideration in Pollard is essentially the same as the definition contained in Webster’s Third New International Dictionary.

Appellant offered a definition of a truck in its brief as follows:

A self-propelled motor vehicle designated primarily to haul freight or cargo. (River Oakes Motor Homes, Inc. v. Winnebago Industries, Inc., 371 F.Supp. 137, 139 (D.C.S.D.Tex.1974)

The Mississippi State Tax Commission relied upon its own Rule 25 for a definition of a truck as follows:

RULE 25. Automobile, Truck And Truck-Tractor Dealers.
Terms and Definitions. “Automobiles, trucks and truck-tractors” shall include only vehicles which are commonly known to the trade as such and which are used only on the public highways. The term includes motor homes (self-propelled) but does not include mobile homes, campers, trailers, semi-trailers, motorcycles, warehouse trucks, drag lines, golf carts and similar vehicles.

This rule is the Commission’s own interpretation of the statute and would generally be entitled to weight in determining legislative intent. State Tax Commission v. J.O. Edmondson, 196 So.2d 873 (Miss.1967). However, such administrative interpretations lose their value when they conflict or are materially at variance with the statute in question.

Certainly a vehicle which otherwise fits into the category of those considered to be trucks does not lose this classification simply because it is not used on a public highway. We are also not persuaded by the suggestion that a vehicle must be able to obtain a license tag before it can qualify as a truck. The legislature has not defined the word “truck,” and Rule 25 sheds no light on our primary question.

Following our rules of construction pertaining to words used in a statute, we conclude it was the intent of the legislature to use the word “truck” in the sales tax statute in its popular sense. We therefore hold that a truck is a self-propelled motor vehicle built for the transportation of freight or cargo on its own chassis.

Having defined the word “truck” as used in the sales tax statute, the next question is, are the vehicles trucks? Appellant takes the position that the vehicles are not trucks but are personal property taxable at five percent (5%) of the cost. Appellee takes the position that all the vehicles are trucks taxable at three percent (3%). The auditors and the Review Board were of the opinion that the chassis, motor, etc. of the vehicles were trucks and taxable at three percent (3%), but the specialized equipment mounted on the trucks was personal property, taxable at five percent (5%). We agree with the opinion of the auditors and the Review Board for the following reasons.

Appellees purchased the three vehicles from Cooper Manufacturing and brought them into the State of Mississippi. All three of the vehicles have the following components: steering wheels, clutches, brakes, wheels, drive differentials, crankshafts, steering gears, pneumatic tires, engine frames, transmissions, starters, radiators, bumpers, dimmer switches, headlights, horns, rear view mirrors, fenders, tail lights, directional signals, heaters, defrosters, windshield wipers, speedometers, odometers, and cabs for drivers and passengers. The vehicles are self-propelled and the above components are those usually and ordinarily found on a truck, which is a vehicle designed to haul cargo.

The manufacturer welded onto the chassis a large winch which is referred to as “the draw works.” Each vehicle has a derrick which was manufactured and placed on the vehicles by Cooper. The same engine propels the vehicle when it is being moved from place to place and also operates the draw works after the vehicle is placed on a job site. Other pieces of equipment were added to the chassis and provision is made to transport a number of items of portable equipment and supplies necessary to carry out the function for which the vehicles were designed, i.e., workover rigs.

In sum, Cooper manufactured a self-propelled truck and then mounted special equipment on it designed to work over oil wells. The special equipment carries out no function until it is in place beside an oil well that is to be serviced. The special equipment is the cargo which the chassis (truck) was designed to haul.

We therefore conclude that the portion of the vehicles in question used to haul the specialized equipment mounted thereon are trucks and should be taxed at three percent (3%). The mounted specialized equipment is tangible personal property and should be taxed at five percent (5%).

For the reasons stated, we reverse and reinstate the order of the Review Board and remand this cause to the chancery court to order a refund of the tax incorrectly assessed and collected by the Tax Commission.

REVERSED AND REMANDED.

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

      . The parties agree that use taxes provided for under section 27-67-5 Mississippi Code Annotated (1972) are to be assessed at the same rate as sales taxes as fixed by section 27-65-17 Mississippi Code Annotated (1972).

      . Section 27-65-17 was amended by Chap. 512 Miss.Gen.Laws (1978) effective July 1, 1978, but the amendment did not change the rate of sales tax to be collected on trucks.


author: HAWKINS, Justice, for the Court:

text:
    BOARD OF ALDERMEN OF TOWN OF BAY SPRINGS, Mississippi, et al. v. J.I. JENKINS.
    No. 54001.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
    Rehearing Denied Jan. 12, 1983.
    William R. Ruffin, Bay Springs, for appellants.
    Tom Tullos, Bay Springs, for appellee.
    Before WALKER, P.J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice, for the Court:

The Town of Bay Springs and a number of its citizens have appealed from a judgment of the Circuit Court of the Second Judicial District of Jasper County reversing an order of its Mayor and Board of Aider-men refusing to rezone certain realty of the appellee Mr. J.I. Jenkins to a commercial classification.

The only issue we address on this appeal is the sufficiency of the evidence supporting the order of the Mayor and Board of Aldermen of this municipality. Finding this order to be supported by law and the evidence before the Mayor and Board, we reverse and render.

FACTS

In 1971, Bay Springs adopted a zoning ordinance, which has been in effect ever since.

In November, 1980, Mr. Jenkins filed a petition with the Planning Commission of Bay Springs to rezone all of his realty from R-l residential to C-2 commercial. There is no plat in the record and the land description fails to give the acreage. Under the ordinance, zone C-2 is a central business commercial district classification, authorizing virtually every type of commercial and professional establishment. No side or rear yard is required; only a front yard building setback line at least thirty (30) feet from the street right of way is required in property zoned C-2.

Numerous neighborhood landowners objected and on December 11, 1980, the Commission by a 6-5 vote denied Mr. Jenkins’ request. Mr. Jenkins appealed to the May- or and Board of Aldermen, where a hearing was conducted on January 20, 1981. Mr. Jenkins, his son, a real estate broker, and the city clerk testified at this hearing.

Mr. Jenkins testified that the land was being prepared for a restaurant type of business. The realty is located on the west side of Highway 15, a main artery of traffic in the town. Three rental homes are now on the property, two of which are in very poor condition, while the third is in a fair condition. Mr. Jenkins testified that there is no chance to sell the property for residential purposes because the realty was commercial property. He stated other commercial classifications were not suitable to him. C-3 classification requires an offset of fifty (50) feet for the front yard, which in his opinion would waste too much of his land. C-2 “modified” would require an offset of one hundred (100) feet. C-l “modified” was not discussed at the hearing, Mr. Jenkins stating he was not familiar with the C-l requirements.

Mr. Jenkins stated the side yard requirements caused an unnecessary loss of the use of his property. He was of the opinion that no adjacent property owner would benefit from the existence of side yards.

John Jenkins, the son of Mr. Jenkins, discussed various commercial sites near the location of the proposed realty to be reclassified. All were within 6/io of a mile from the property. He listed Depositor’s Savings and Alexander Motor Company. Also listed by John Jenkins were the Bay Springs Equipment Company, an auto parts store; the Bay Springs Animal Hospital; the Jasper County Florist; a filling station; and the Bay Shopping Center. With the exception of the Depositor’s Savings, all these establishments were shown to be less than thirty (30) feet away from the right of way of Highway 15. Depositor’s Savings was thirty-five (35) feet from the right of way. On the same side of the highway as Mr. Jenkins’ property were Depositor’s Savings, the tractor company, the animal clinic, the Forestry Commission Building, the florist’s business, the land owned by the Jasper County Bank, the filling station, and the shopping center. The Cox family owns a home which is surrounded on all sides by the property sought to be reclassified.

A real estate broker, who was also a licensed appraiser, testified that it would be difficult for this property to be sold as residential because of the highway traffic noise, as well as the topography of the land, and that only two portions of the realty could be used as residential. He also stated that the area had changed in the nine years he had lived in Bay Springs in that commercial activity had grown. It was the opinion of the realtor that the highest and best use of the property was commercial. It was also his opinion that rezoning would have a good effect on the Cox property, and that harm could only come if the business establishments to be placed on the realty were auto repair or service stations. The realtor also stated there was no benefit to having side yards. He was of the opinion that Highway 15 is an area where growth will probably occur and that the classification of the realty as residential would ruin its value.

The city clerk testified that the shopping center was not in existence at the time the zoning ordinance was adopted. He further testified that before zoning no business establishments were located south of the property. He also testified that the land lying due north of the property was zoned C-3, and that the land lying southeast of the property (the bank) was zoned C-2 “modified”.

Property owners in the area voiced statements at the hearing before the Mayor and Board of Aldermen that they did not object to some commercialization of the area, but that the zoning requested by Mr. Jenkins would allow any type of commercial property to be located thereon and they objected to that as it would materially affect the value of their residential property across the highway. They stated that in the past they had agreed to some commercialization of the property with the understanding it would be restricted, but that they were being penalized for having agreed to any change in the rezoning in the past. They stated they wanted to keep an environment around their homes with an atmosphere of some peace and quiet. Mr. and Mrs. Cox also objected to the rezoning. Their objection had an additional aspect: that thére would be no side yard required in the setback lines.

Following the hearing the Mayor and Board of Aldermen entered the following order:

ORDER ACCEPTING RECOMMENDATION OF THE PLANNING COMMISSION AS TO THE APPLICATION OF J.I. JENKINS TO REZONE CERTAIN LANDS
On January 20, 1981, the application of J.I. Jenkins to rezone certain lands owned by him and located West of Highway No. 15 and North of Bay Shopping Center and more particularly described in his application was heard by the Mayor and Board of Aldermen by way of appeal from a recommendation by the planning commission that the lands be not rezoned.
Mr. Jenkins was present in person and represented by an attorney and there were numerous protesters also present.
Objection in writing had been filed by 100% of the owners of the lands directly opposite to the lands sought to be rezoned and extending 160 feet from the street frontage of the said opposite lots and, as required by Section 17-1-17, Mississippi Code 1972, as amended, the proposed amendment would require favorable vote of two-thirds of the aldermen.
Evidence was offered on behalf of Mr. Jenkins in the form of witnesses. Mr. Jenkins’ son testified that the buildings very near to the lands in question and some as far away as 8/ioths of a mile were constructed closer to the highway right-of-way line than is allowed by the town ordinance. This is true. However, the buildings noted by the witness were constructed before the zoning ordinance went into effect.
Mr. Jenkins himself testified as did a local realtor that the value of the lands of Mr. Jenkins for residential purposes is not as great as the value would be for commercial purposes. The Board has no doubt but what that is true. However, the Board well knows that the value of the residential lots opposite to and adjacent to the lands in question would be greatly reduced by the rezoning of the lands in question commercial as requested by Mr. Jenkins.
The realtor testified that in his opinion traffic and noise along Highway 15 and in the area of the lands in question would not significantly increase if the lands were rezoned commercial. The Board does not share the opinion of this witness for, by the very nature of commercial property, the traffic and noise level would be increased.
It should be noted that within the lands sought to be rezoned there is a residence and lot owned by Mr. and Mrs. Cox, who have objected to the rezoning. Mr. Jenkins’ application was that the lands be rezoned C-2, which zoning would require no side yard set-back lines, and the same would allow the owners of such property to construct buildings up to the property line of the Cox. The realtor testified that buildings jammed up against the property line of Mr. and Mrs. Cox would not in any wise diminish the monetary value of the Cox property and would not in any wise interfere with their use of the same. Again, the Board does not share the opinion of the realtor for reason that by the very nature of C-2 zoning, there is no provision for side yard set-back lines, lands adjacent thereto would be diminished in value.
Testimony was also offered that the lands were in reality commercial in nature rather than residential in nature, reasons having been given were that the lands were adjacent to the Bay Shopping Center and nearby on the North was a florist which, incidentally, is likewise owned by Mr. Jenkins, and further that with the exception of the Cox’s home, there were only two houses and those being rental houses which were not in too good state of repair. Both of these rental houses, however, are owned by Mr. Jenkins, and remain in such state of repair as he allows.
It is worthy of note that Bay Shopping Center is located in an area zoned C-l modified which was designed for the purpose of allowing growth and development of the Bay Shopping Center. The florist referred to and owned by Mr. Jenkins and located North of the lands in question were operated as a commercial establishment at the time that the zoning ordinance went into effect.
While there were many persons present objecting to the rezoning of the lands in question, Mr. D.J. Dear, who owns lands directly opposite the lands in question, spoke on behalf of all of the objectors reminding the Board of the residential nature of the area, the quality of life presently in the area and the necessary ills that accompany use of lands for commercial purposes, especially noting the night time activities that would accompany commercial development as well as the glare and noise and urging upon the Board the proposition that the lands were residential in nature.
Mr. and Mrs. Cox, above referred to, personally voiced their objection to the rezoning and to the absence of side yard set-back lines in C-2 as requested by Mr. Jenkins.
At the close of the hearing, the matter was taken under advisement for consideration and for ruling at the regular meeting of the Mayor and Board of Aldermen to be held February 3, 1981.
The law places upon the petitioner the responsibility of proving that there was some mistake in the original zoning, or that conditions of the neighborhood had changed so as to require a rezoning of the lands in question. The issues were presented to the Planning Commission composed of eleven prudent and reasonable citizens of this town who heard and considered the matter and determined that the lands should not be re-zoned.
The Zoning Ordinance was enacted to promote the general welfare of the citizens and one of the things it was designed to do was to prevent over crowding of land and mixing of land uses. Also, in Sec. 102 of the ordinance it is stated that the regulations contained in the ordinance “have been made with reasonable consideration, among other things, to the character of the zoning district and its suitability for particular uses and with the intention of conserving the value of buildings and encouraging the appropriate use lands throughout the town.”
The zoning district designated “C-2” is by definition “Central Business Commercial” and carries with it an assortment of uses, a substantial amount of which are night-time uses and are, by their very nature, inconsistent with residential use. Further, such district requires only a thirty foot set-back line from the highway right-of-way and requires no side or rear yard set-back lines. These zoning provisions, in themselves, are inconsistent with residential use, and it appears that the design of the ordinance was that such zoning be reserved for the central commercial business use.
This board is of the opinion that some lighter or daytime commercial zoning may be in order, but Mr. Jenkins has not asked for such zoning, but has applied for “C — 2” District re-zoning, and that is what the board must act upon.
The applicant has made no allegation or attempted to show that there was any mistake in the zoning ordinance concerning the lands in question, and for the reasons hereinbefore set out we find that the evidence does not show and we have not found that conditions have changed in the community in question that would make it to the best interest of the Town of Bay Springs to re-zone this property “C-2”.
It should be remembered that the May- or and Board of Aldermen consists of men of the town not trained in the law, who are making a conscientious effort to do what is best for the town and its citizens, and we have taken into consideration things we know to be facts and things dictated by common sense. We take very seriously the zoning law, which has the effect of dictating to some degree what a person may do with his own property, but, on the other hand, we recognize the espoused purpose and design of the ordinance to protect the character of a community. In this instance we do not find that public necessity, convenience, or general welfare dictate or indicate that the particular zoning requested should be allowed.
For the above reasons, the ruling of the Planning Commission in this matter be and the same is hereby accepted and the application of Mr. Jenkins as made be and the same is hereby disallowed, and the same is so ordered here in regular session on this 3rd day of February, 1981.

The circuit judge found that the petitioner had met his burden of proof by sworn testimony, and that the witnesses he presented were not cross-examined. The court further found the objectors offered no sworn testimony in opposition, and therefore the testimony of the petitioner was not denied. It was upon this basis that the circuit judge reversed the municipality’s decision.

LAW

In our view the circuit judge placed too limited a view upon what the Mayor and Board of Aldermen could consider in reaching a decision upon the petition to rezone. We believe the better view is stated in R. Khayat and D. Reynolds, Zoning Law in Mississippi, 45 Miss.L.J. 365, 372-73 (1974):

The hearing should be an informal, nonadversary proceeding in which the rules of evidence are not applicable. This is consistent with the basic policy consideration underlying the requirement of the hearing; i.e., to provide the governing authorities with as much information as possible concerning regulations which vitally affect the community at large as well as individual landowners.... Practically speaking, it would be extremely difficult to conduct a formal hearing in the emotionally-charged situation which so frequently is found at a zoning hearing.

See also R. Anderson, 3 American Law of Zoning § 16.24, at 211-12 (1968); D. Hag-man, Urban Planning and Land Development Control Law, § 122 (1971); A. Rath-kopf, 2 The Law of Zoning and Planning 44-1 to -2 (3rd ed. 1964); E. Yokley, 2 Zoning Law and Practice § 13-9, at 93-94 (3rd ed. 1965).

In rendering the municipal order, the Mayor and Board of Aldermen were authorized to consider the statements expressed by all the landowners at the hearing, as well as to call upon their own common knowledge and experience in their town. It is manifest that the Mayor and Board took into consideration all statements, both sworn and unsworn, and their common knowledge and familiarity about their small municipality, in reaching their decision. We believe this method to be sound and practical, and courts should respect such findings unless they are arbitrary, capricious, and unreasonable.

We have set forth the entire order of the Mayor and Board, which to us appears to have shown these officials’ concern for, interest in, and fairness to all parties concerned. We certainly cannot say their decision was arbitrary, unreasonable, or capricious.

Beyond this, we have often stated that before property is reclassified from one zone to another, there must be proof either (1) that there was a mistake in the original zoning, or (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. See City of New Albany v. Ray, 417 So.2d 550, 552 (Miss.1982), and cases therein cited.

The petitioner in this case failed to prove any public need to have his property rezoned to an unlimited commercial classification.

The Mayor and Board quite properly affirmed the finding and recommendation of its planning commission.

We therefore reverse and render, reinstating the February 3, 1981 order of the Mayor and Board of Aldermen of Bay Springs.

REVERSED AND RENDERED.

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

BOWLING, J., takes no part.

      . C-l zoning was the subject matter of the Planning Commission’s suggestion of a compromise. C-l “modified” also requires more setback footage than does C-2, C-l “modified” requiring a setback footage of fifty (50) feet.

      . The Depositor’s Savings and the motor company were at their locations before the zoning ordinance was enacted.


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

text:
    Theresa DE LA OLIVA v. LOWNDES COUNTY DEPARTMENT OF PUBLIC WELFARE, Paul D. O’Leary.
    No. 53548.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
    Rehearing Denied Jan. 5, 1983.
    On Motion to Make Judgment More Specific and to Clarify Judgment Jan. 17, 1983.

      Colom, Mitchell & Colom, Beverley B. Mitchell, Dorothy W. Colom, Columbus, for appellant.
    Joseph A. Gentile, Robert G. Jenkins, Jackson, Robert L. Lancaster, Columbus, for appellee.
    Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice, for the Court:

This is an appeal from the Chancery Court of Lowndes County wherein Theresa De La Oliva, appellant, sought custody of her two children from the Lowndes County Department of Public Welfare, appellee. The children had been removed from Mrs. De La Oliva’s custody in 1974 while she was a resident of Columbus, Mississippi. Following their removal, Mrs. De La Oliva returned to California, where she presently resides, in hopes of establishing a home suitable for the return of her children.

Mrs. De La Oliva successfully obtained temporary custody of Brian in January of 1980. The welfare department, however, sought to have her parental rights terminated as to the child Theresa based upon abandonment of the child, as well as the existence of an extreme and deep-seated antipathy by the child toward Mrs. De La Oliva. At the conclusion of a very lengthy trial, the chancellor vested the custody of Brian with Mrs. De La Oliva but terminated Mrs. De La Oliva’s parental rights as to Theresa. We reverse.

Appellant came to this country from Spain in 1967. In 1969 she married Paul O’Leary. The couple first lived in Sacramento, California, but later moved to Puer-to Rico. From Puerto Rico the couple moved to Michigan where Brian O’Leary was born on April 2, 1971.

While appellant was pregnant with her second child, O’Leary abandoned the relationship. Their second child, Theresa O’Leary, was born on February 4, 1973, in Sacramento, California. Later that same year, appellant received a phone call from O’Leary who advised her of his whereabouts. As a result of this information, appellant and her children traveled to Columbus in December of 1973 to be reunited with Paul O’Leary.

While in Columbus, O’Leary, due to his drinking problem, physically abused appellant and deserted the household. Following this incident, appellant was taken to the Lowndes County Department of Public Welfare by a police officer. The welfare department supplied food for appellant and her family. Appellant, however, was unsuccessful in her employment endeavors in the Columbus area. .

Appellant was hospitalized in June 1974. O’Leary signed a voluntary consent form to place the children in foster care when appellant was hospitalized. However, upon appellant’s release from the hospital, the children were returned to her custody. According to welfare department officers, the return of the children to appellant was on a trial basis only.

On July 1, 1974, appellant was hospitalized again. The children were placed in foster care pursuant to the previous temporary court order. The children were not returned to appellant’s care and custody following this incident. Their custody has remained with the welfare department since that time.

Because of the difficulties appellant experienced in the Columbus community, the welfare department suggested she return to a Spanish speaking community in hopes of establishing a home for herself and her children. Oliva subsequently moved to California where she continues to reside.

O’Leary obtained a divorce from appellant on May 1, 1975, upon the grounds of habitual cruel and inhuman treatment. Legal process was had by publication. In April of 1976, O’Leary sought custody of the two minor children, but was unsuccessful in his actions.

Appellant returned to Columbus after departing for California in the summer of 1976. At this time, the welfare department furnished appellant an apartment and a job; however, she returned to California to marry her present husband. Although appellant’s trips to Columbus, barring court appearances, for the purpose of visiting her children, have been somewhat limited, the record is replete with her continuous desire to maintain contact with her children by both telephone calls and written communications.

Appellant returned to Columbus in 1979, whereupon she learned of an attempt being made to adopt Theresa. Dr. and Mrs. Ellis, Theresa’s foster parents, had filed a petition to adopt Theresa in which the natural father, Paul O’Leary, had joined. Appellant objected to the petition which was later denied. The court ordered the welfare department to continue supervision of the child and work toward the development of a plan to return the child to the mother.

In a separate action, appellant thereafter filed a petition for custody of Brian. This petition was later amended to include Theresa. Temporary custody of Brian was granted to appellant on January 28, 1980. The Department of Public Welfare filed a cross-petition to terminate the parental rights of appellant as to Theresa. The father, Paul O’Leary, also filed for custody of both children.

At the conclusion of the hearing, the chancellor, upon conflicting lay and expert testimony, terminated appellant’s parental rights as to Theresa, finding a deep-seated antipathy existing between the child and appellant as well as an erosion of that relationship. The chancellor, however, ordered that the permanent care and custody of Brian be vested in appellant.

I. Did the chancellor err in terminating appellant’s parental rights upon a preponderance of the evidence?

The chancellor in her findings stated:

In conclusion, the Court overrules the Motion to Dismiss the Petition to Terminate Parental Rights made at the conclusion of Department’s case, and on the grounds of deep-seated and extreme antipathy and erosion of the relationship, terminates the rights of the mother as to the daughter, Terrie, [Theresa] upon a preponderance of the evidence in the record.

At the time this cause was tried, Mississippi Code Annotated section 93-15-109 (Supp. 1980), provided:

After hearing all the evidence in regard to such petition, if the chancellor is satisfied by a preponderance of the evidence that the parent or parents are within the grounds requiring termination of parental rights as set forth in this chapter, then the court may terminate all the parental rights of the parent or parents regarding the child, and terminate the right of the child to inherit from such parent or parents. The termination of the parental rights of one (1) parent may be made without affecting the parental rights of the other parent, should circumstances and evidence ever so warrant.

While this case was pending on appeal, the United States Supreme Court decided Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Santosky involved the constitutionality of New York Social Service Law §§ 384-b, subd. 4(d), 384-b, subd. 7(a) and the New York Family Court Act § 622, which authorized the termination of parental rights following a finding of appropriate grounds established by a fair preponderance of the evidence. The Supreme Court held that in a termination of parental rights proceeding, the process which is due under the fourteenth amendment of the United States Constitution as determined by an application of the balancing of three factors enumerated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), requires a standard of proof which is at least clear and convincing as opposed to one which is merely by a fair preponderance of the evidence.

Following the decision in Santosky, this Court addressed the constitutionality of section 93-15-109 in Natural Father v. United Methodist Children’s Home, 418 So.2d 807, 809 (Miss.1982), wherein we stated:

Under Santosky, supra, the standard of proof established by Mississippi Code Annotated § 93-15-109 (Supp.1981), is obviously deficient and unconstitutional because it allows parental rights termination to be decreed based upon a preponderance of the evidence, rather than the standard of at least “clear and convincing” evidence. Of course the only portion of the statute which is affected by our decision today is the standard of proof required by § 93-15-109 (Supp.1981) in a termination of parental rights action. The standard of proof in any such action brought under the statute must be “clear and convincing” in accordance with Santosky, supra. Other than in this one aspect, the operation and application of the statute is unaffected. (418 So.2d at 811)

The chancellor, in making her findings in the case sub judice, clearly relied on an unconstitutional and impermissible standard of proof. Therefore, the findings entered pursuant thereto are manifestly wrong. The proof in the case at bar established beyond peradventure that appellant has attempted to establish a suitable home for the return of her children since 1976. She has continually made efforts to remain in touch with her children despite barriers imposed by their geographic location and constant interference by many well-intentioned people. The proof wholly failed to establish appellant had abandoned her children and was further insufficient to establish, by clear and convincing proof, an extreme and deep-seated antipathy by the child toward appellant or some other substantial erosion of the parent and child relationship which was caused, at least in part, by appellant’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate or prolonged imprisonment. See Miss.Code Ann. § 93-15-103(3)(e) (Supp.1982). Most of the antipathy entertained by the child toward appellant, or erosion of the parent/child relationship was largely contributed to by well-intentioned people in the welfare department and judicial system’s interference in that relationship. In denying an adoption of the child by the Ellises in 1979, Chancellor Brand made the following findings:

It has taken five years for this case to reach this point. The errors that have been committed will not be corrected today. I am compelled to call to the specific attention of the Welfare Department Section 48-15-15, relative to children that they may have in their custody, that there is a statutory time limit for custody of children in foster homes; that they do require evaluation and that the law does require individual plans for the development and return of the child to the natural parents.
To avoid the tragedy of this case, the Court will require of the Welfare Department that a list by cause number and name be filed in the office of the Chancery Clerk reflecting each case in which the department has custody pursuant to the Court Order of a child that is in foster care in this county. Said filing to be no later than the 1st day of October, 1979; said filing to include the department's plan of development for the return of the child to its parents, or in the alternative, the department’s plan for termination of parental rights, (emphasis ours).

Apparently, there was no appeal taken from this ruling. Despite this fact, the welfare department evidently failed to implement a plan for the return of the child unto appellant and did not seek to terminate appellant’s parental rights until appellant filed her present suit for custody of the child.

Because this cause was tried under an unconstitutional standard of proof and the proof was wholly insufficient to support a finding that would justify the termination of appellant’s parental rights, this cause is reversed and judgment rendered here for appellant with directions that the welfare department restore custody of the child to appellant as expeditiously as possible without interruption to the child’s educational activities.

REVERSED AND RENDERED.

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

PRATHER, J., took no part.

On Motion to Make Judgment More Specific and to Clarify Judgment

OPINION AND ORDER

EN BANC.

DAN M. LEE, Justice,

for the Court:

This cause was brought upon motion of appellant, Theresa De La Oliva, to make judgment more specific, filed January 10, 1983, response and motion to correct and clarify judgment filed on January 11, 1983, by Paul D. O’Leary, a defendant and cross-complainant in this cause at the trial, who did not appeal to this Court. (Mr. O’Leary is the natural father of Theresa O’Leary, the minor child who is the subject of this unfortunate litigation). O’Leary made an entry of appearance and motion to abate in this cause in the Chancery Court of Lowndes County, Mississippi, on July 16, 1980, and the trial court entered an order allowing the entry of appearance and granted a motion for continuance to O’Leary on July 18, 1980.

On August 19, 1980, O’Leary filed an answer and cross bill seeking custody of Theresa O’Leary. On January 27,1981, the chancellor rendered an opinion terminating the parental rights of the appellant and granted continuing custody of Theresa O’Leary to the Lowndes County Department of Public Welfare, the effect of which was to deny O’Leary custody of his daughter Theresa O’Leary.

Appellant perfected an appeal to this Court and a decision was rendered on December 15, 1982, reversing the chancellor, and judgment was rendered in the Supreme Court for appellant with directions that “the welfare department restore custody to the appellant as expeditiously as possible without interruption to the child’s educational activities.” A petition for rehearing was denied and mandate issued on January 6, 1983.

The motion of the appellant states that Theresa O’Leary may enter the next semester of school in Hollywood, California on February 2, 1983, and that the said child started a semester of school in Lowndes County on or about January 3, 1983.

O’Leary’s motion to correct and clarify largely seeks to relitigate this unfortunate cause. However, he does point out that while he did not appeal from the ruling of the trial court, he was not served with summons to answer the appeal as provided by Mississippi Code Annotated section 11-51-55 (1972) and section 11-51-61 (Supp. 1982). The motions of the appellant and O’Leary both have attached affidavits which substantiate an unfortunate situation that has already caused physical conflicts resulting in injury to the child, and that the child was placed in the hospital pending an order of this Court.

We are of the opinion and so order that the former order of this Court should be made more specific and clarified as an emergency matter at this time in order to prevent further violence. We, therefore, order that the former opinion in this cause be modified by deleting the words “without interruption to the child’s educational activities” from the last paragraph thereof. With this deletion, said opinion will now read as follows:

Because this cause was tried under an unconstitutional standard of proof and the proof was wholly insufficient to support a finding that would justify the termination of appellant’s parental rights, this cause is reversed and judgment rendered here for appellant with directions that the welfare department restore custody of the child to appellant immediately-

From the record before this Court, the mother is entitled to the custody of her child Theresa O’Leary.

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

WALKER, P.J., and PRATHER, J., took no part.

      . Brian was approximately eleven years old at the time of the hearing while Theresa was approximately eight years old.

      . Dr. Ellis was Theresa’s psychiatrist as well as her foster father. Dr. Ellis was also the welfare department’s primary expert witness who asserted the best interest of Theresa would be served by a severance of the relationship with appellant.

      . The three factors enumerated are:
      [1] The private interests affected by the proceeding;
      [2] The risk of error created by the state’s chosen procedure;
      [3] And the countervailing governmental interest supporting use of the challenged procedure.


text:
    James COPELAND v. STATE of Mississippi.
    No. 53950.
    Supreme Court of Mississippi.
    Dec. 22, 1982.

      Ford & Ford, James 0. Ford, Tupelo, James D. Minor, University, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.
   SUGG, Presiding Justice, for the Court:

This case involves an appeal of a conviction and nine year sentence imposed on the appellant for his sale of a controlled substance to an agent of the Mississippi Bureau of Narcotics.

On the night of April 4, 1979, appellant sold Agent Dennis McAnally of the Mississippi Bureau of Narcotics a quantity of 3, 4 methylenedioxy amphetamine. This substance is listed as a Schedule I drug in section 41-29-113 Mississippi Code Annotated (1972 recompiled), and its sale is prohibited by section 41-29-139 Mississippi Code Annotated (1972 recompiled). The illegal transaction was consummated at appellant’s apartment in the presence of a confidential informant, Agent McAnally, and an unidentified male. Another agent, Randy Corbin, provided back-up assistance and saw Agent McAnally and the confidential informant leave the appellant’s apartment. Apparently the unidentified male remained in the apartment.

Appellant was not indicted for his crime until April 30, 1980, some twelve months after the commission of the offense. After a series of continuances granted to both parties, trial began on July 28, 1981, and ended on July 29, 1981, with the jury returning a guilty verdict. Appellant’s motion for a new trial was overruled and this appeal was perfected.

There is no contention on appeal that the verdict was contrary to the weight of the evidence. Appellant contends that his due process rights were violated by the yearlong preindictment delay and by the refusal of the trial court to order the state to expend reasonable efforts in good faith to locate the confidential informant. He further argues that the trial judge abused his discretion in not allowing the appellant to reopen his case, after both sides had rested, in order to present an additional witness. Lastly, he contends that the indictment failed to charge a crime.

We do not consider the merits of appellant’s argument that the preindictment delay violated his constitutional guarantee of due process of law. This question is not before us because the record reveals that no objection or motion was presented to the trial court which would have alerted the judge to the fact that the delay may have prejudiced the appellant’s right and which, more importantly, would have allowed the state an opportunity to justify the delay. We steadfastly refuse to depart from our rule that, we will not consider an error raised for the first time on appeal, except in exceptional cases. See Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950). Such a rule is founded, in part, on the fair assumption that an accused, in the face of incarceration, will make and preserve all objections available to him. The rule is further supported by our hesitancy to place a trial judge in error on a matter not presented to him for decision. See Ponder v. State, 335 So.2d 885 (Miss.1976). Indeed, our ruling here is also supported by a statute enacted over one hundred years ago. Section 99-35-143 Mississippi Code Annotated (1972), first enacted in 1878, provides in part that:

A judgment in a criminal case shall not be reversed ... because of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their character, unless the record show that the errors complained of were made ground of special exception in that court.

The present case does not come within either the statutory exception or those exceptions engrafted by this Court. Cf. Edwards v. State, 217 So.2d 14 (Miss.1968). (This Court refused to consider the issue of a five year preindictment delay where such was not raised at the trial level.)

The next alleged error is concerned with the confidential informant who arranged the transaction, accompanied Agent Mc-Anally to appellant’s apartment and was present when the transaction was consummated. The state furnished the appellant with his name, Jim Hightower, and his possible whereabouts. This was in July, 1980. On October 8,1980, appellant filed a motion requesting that the state furnish him with a definite location or address of the confidential informant. This motion alleged that a subpoena had been issued to compel High-tower’s attendance and that counsel had exhausted all leads in trying to locate the witness, both to no avail.

Trial was originally set for October 15, 1980, but, as a result of continuances moved for by both parties, trial did not begin until July, 1981. The motion to require the state to furnish appellant with a definite address of the confidential informant was overruled by the court on May 13, 1981 — some eight months after it was filed. In so doing, the court noted that at the time the informant’s whereabouts were not known to the state, but that the state furnish the defendant with the information sought if and when it became available.

Under this assignment appellant argues that the furnishing of the name and possible location does not satisfy due process and that the state “should be required to undertake reasonable efforts in good faith to locate the informant.”

This Court has recognized that the state in certain cases is required to disclose a confidential informant’s identity, e.g., Hemphill v. State, 313 So.2d 25 (Miss.1975), but there are no Mississippi cases which precisely address the extent and nature of the state’s duty with respect to its efforts to produce a confidential informant. At a minimum, if the circumstances dictate disclosure of the identity of an informant, the state must, in good faith, disclose all information in its possession, including that of location. It would indeed be serious misconduct on the state’s part to withhold or falsify such information. United States v. Williams, 496 F.2d 378 (1st Cir.1974). Moreover, in the proper circumstances, the state may acquire a duty to affirmatively show, on timely demand, its good faith. Those circumstances are not easily stated and should be developed on a case-by-case basis. See United States v. Diaz, 535 F.2d 130 (1st Cir.1976); Williams, supra. However, the duty cannot be extended to the point that it becomes incumbent on the state to guarantee the informant’s presence at trial.

In the present case there is no intimation of bad faith on the state’s part. The appellant did not seek to show that the state had deliberately withheld information or acted in bad faith in its compliance with the court order to furnish any available information. Absent such a showing we cannot say that the appellant’s rights were violated.

The more troublesome issue facing this Court and the one which requires us to reverse this case is that the indictment did not charge a crime. In the present case the indictment charged appellant with unlawfully selling, “a quantity of methylenedioxy amphetamine, a controlled substance.”

Appellant’s theory under this assignment is that the indictment did not charge a crime and is void since “methylenedioxy amphetamine” as distinguished from “3, 4 methylenedioxy amphetamine” is not a controlled substance.

In support appellant relies on Brewer v. State, 351 So.2d 535 (Miss.1977). In Brewer the appellant was convicted for delivery of a controlled substance. The indictment charged that Brewer and others “did unlawfully,' willfully and feloniously, without authority of law deliver ... a certain controlled substance, to-wit: preludin.” Id. at 536. Brewer did not demur or otherwise challenge the indictment but moved to dismiss the charges at the conclusion of the state’s case on the ground that the indictment failed to charge him with the delivery of a substance listed in the statutory schedule. Evidence adduced at trial showed that preludin contained prenmethrazine, a substance listed in Schedule II of the Controlled Substances Act. Section 41-29-115 Mississippi Code Annotated (1972). The trial judge overruled Brewer’s motion to dismiss and required the state to amend the indictment to set forth the fact that prelu-din contained phenmetrazine.

On appeal Brewer contended that the indictment was not amendable in that it failed to charge a crime and this Court agreed. In reversing, this Court noted that section 99-7-21 Mississippi Code Annotated (1972), applies only to matters of form and not substance and the omission complained of was one of substance. The Court then reaffirmed that,

“Every material fact and essential ingredient of the offense — every essential element of the offense — must be alleged with precision and certainty, or, as has been stated, every fact which is an element in a prima facie case of guilt must be stated in the indictment.” ([Love v. State] 211 Miss. [606] at 611, 52 So.2d [470] at 472). (Brewer, 351 So.2d at 536).

In sum, Brewer held that a substantive defect in an indictment cannot be cured by extrinsic proof and is not waived by the failure to demur thereto.

The state responds to this assignment of error by asserting that the omission of the numerals “3, 4” was a matter of form and therefore amendable under section 99-7 — 21, supra, contending the objection was waived since no demurrer was filed.

The issue presented here is identical to one presented to the Fifth Circuit of the United States Court of Appeals in United States v. Huff, 512 F.2d 66 (5th Cir.1975). Huff was indicted and convicted on two counts of offenses contained in 21 U.S.C. § 841(a)(1). Count I charged that he “did unlawfully distribute (a quantity) of 3, 4 methylenedioxy amphetamine, a Schedule I controlled substance.” Count II charged that Huff and others, “did unlawfully possess, with intent to distribute (a quantity) of methylenedioxy amphetamine.” Id. at 68. Huff contended that Count II was defective and void. The Court of Appeals agreed and reversed the conviction as to that count. In so holding the Court reasoned that,

[t]he addition of the numbers “3, 4” would have indeed saved this count, but we cannot regard this defect as a mere technicality, for the chemical and legal definition of these substances is itself technical and requires precision. In sum, the variance between non-criminal conduct, as alleged in Count II, and criminal conduct, which the government attempted to prove under Count II, rises above the level of form, however minute the omission may have been. See Van Liew v. United States, 321 F.2d 664, 670, 674 (5th Cir.1963). The conviction on Count II must be reversed. (Huff, 512 F.2d at 69) (Emphasis Added).

In reaching its conclusion the Fifth Circuit noted that the federal statute, 21 U.S.C. § 812 Schedule 1(c)(1), listed “3, 4 methylenedioxy amphetamine” but did not list “methylenedioxy amphetamine.” Moreover, there was testimony by the government chemist that “methylenedioxy amphetamine” is a different drug than the one listed in the statute.

There are of course striking similarities between Huff and the instant case. Aside from the obvious, it is noted that the federal Schedule I of Controlled Substances is identical to the Mississippi statute; as in Mississippi, indictments can be amended in federal courts for matters of form but not substance; and the standards for judging the sufficiency of an indictment are essentially the same in both jurisdictions.

In light of the holding in Brewer, and the Fifth Circuit’s opinion in Huff, we hold that the indictment failed to charge a crime and is therefore void.

For the foregoing reasons, the judgment of the trial court is reversed and the appellant is remanded to the custody of the Sheriff of Alcorn County, Mississippi, to await action of the next grand jury.

REVERSED, APPELLANT REMANDED TO THE CUSTODY OF THE SHERIFF OF ALCORN COUNTY TO AWAIT ACTION OF THE NEXT GRAND JURY.

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